DISSERTATION RESEARCH
Intellectual Property Rights and Agriculture Sector
Prepared by:
NAME
LL.M. (Sem. - IV)
Roll No.
Group – III
Intellectual Property Rights
YEAR
under guidance of:
PROF. NAME
Professor in Charge
Department of Law
University of Mumbai
ACKNOWLEDGEMENT
First of all, I wish to thank my Parents, Wife and my Police Department superior officer's Assistant police commissioner, NAME _________-and NAME __________ for their unconditional support, care and understanding they had extended during the whole period of this research. I also wish to thank Prof. ________________ for her guidance which helped me to shape up this dissertation research work.
I would also like to thank my class mates for their valuable comments and suggestions and also to those people whose views and answers were very valuable and a driving force towards the conclusion of this research work. The assistance provided by the staff at the University Library for providing the necessary reference material can’t be ignored. I am indebted to all of them, without whom this work would have never been into existence.
Mumbai NAME
YER LL.M. (Sem. IV)
Group III
Intellectual Property Rights
Roll. No. ____
PREFACE
Intellectual Property Law is a very broad category of law which includes Patents, Designs, Trade Marks and Copyrights, Confidential Information, Trade secrets and know-how. Intellectual Property plays a very crucial role in development of every field of human Endeavour. The rapid Agriculture Development has brought about due recognitions to inventions and need has arise to protect such inventions in all forms and at every cost.
In this dissertation research carried through the Study method, I would like to deal with ''The Intellectual Property Rights and Agriculture Sector''. The basic principle behind this subject form protection, violation and security in agriculture sector.
Also critical evaluation of any practical solution possible, to any problems faced in agriculture sector which may enable the authority undertaking the process protecting to novel inventions ,trade and culture of the Agriculture sector.
Mumbai
YEAR
NAME
LL.M. (Sem. IV) Group III
Intellectual Property Rights
Roll. No.__
DECLARATION
As required by the University Rules, I wish to state that the work embodied in this Doctrinal Research titled ''The Intellectual Property Rights and Agriculture Sector'' is based on the research and study carried out by me under the guidance of PROF __________- in charge at the Department of Law, University of Mumbai.
This work has not been submitted anywhere else except to the Law Department at the University of Mumbai. Utmost care has been taken to avoid any discrepancies, grammatical or typographical errors.
Mumbai
YER LL.M. (Sem. IV)
Group III
Intellectual Property Rights
Roll. No.____
NAME
Professor-in-Charge
Department of Law
University Name
TABLE OF CONTENTS Page No.
Title 1
Acknowledgement 2
Preface 3
Declaration 4
Table of Contents 5 to 9
CHAPTER - I ---------- Page no. 10 to 38
INTRODUCTION.
CHAPTER - II ---------- Page no. 39 to 69
• IPRs RELEVANT TO AGRICULTURE:
• The Paris Convention
• The TRIPS agreement
• The GATS agreement
• WTO have an Agreement on Agriculture
• WTO Agreement on agriculture a background paper
• India's Commitment
CHAPTER – III ------------- Page no. 70 to 123
FOOD SECURITY-AN IMPORTANT NON-TRADE CONCERN
• Issues of Interest to Developing countries
• The Adventure of WTO
• Significance of Trade Secrets in agriculture
• Position in India
• Protection of Confidential Information/ Trade secret in the hand
of Employs
• Plant innovation: past and present 3.9.16 Alternative UPOV Body
• The rationale for plant variety protection
• The new UPOV - other features introduced by the 1991 Act
• More members, still the same club?
• Non-governmental organizations' observer status with UPOV
• UPOV as ‘effective’ sui generis system
• The salient features of COFAB
• The trips – CBD Linkage
• Recommendations
• The sui generis system
• Farmers rights related of Breed
CHAPTER- IV ----------- Page no. 124 to147
SEED INDUSTRY POLICY, INTELLECTUAL PROPERTY RIGHTS, AND AGRICULTURE IN INDIA
• Importance of Farmer's Right to Sell Seed
• Biodiversity Policy / IPR Policy
• The Impact of Policy Reforms on Innovation in India’s Seed Industry
• What are the key factors behind the growth of India’s seed industry
More importantly
• Public policies, private investment and productivity growth
• Background: Maize, Pearl Millet, Rice, and Wheat in India
• Potential of Private Hybrids
• Possibilities of an Innovation Act for India
• IPR on biological material
• Exemption from fees
CHAPTER- V -------------- Page no .148 to185
Implications Of WTO for Indian Agriculture:
• Trade-related Aspects of Intellectual Property Rights System (TRIPS)
• Three permissible exceptions to the basic rule on patentability. :
• Methodology:
• The Bio safety Regulations
• Highlights of In5.19 Protection against bad seed
• Indian Plant Variety and Farmers’ Right Bill, 1999
• Findings and recommendations for change
• Implementation requirements
• Four options are consistent with the obligations in Article 27.3(b):
CHAPTER-VI ------------- Page no 185 to208
GEOGRAPHICAL INDICATION
• The economic importance of 'Geographical Appellation'.
• Patents on Micro Organisms
• The impact of other IPR on Farmers’ Rights and Food Security
• Sui generis protection systems
• Geographical indication and IPR
• Relationship between farmers’ variety (FV) and GI
• Need protection for GI
• Registration
• The Indian GI act
• Rights of Action Against Passing-Off -
CHAPTER – VII ------------- Page no.209 to 232
• THE CASE OF BASMATI RICE PATENT:
• THE CASE OF NEEM TREE PATENT
• THE CASE OF TURMERIC
• DARJEELING TEA PATENT CASE-
• IPR: Patentable subject matter in agriculture:
CHAPTER – VIII ------------- Page no . 233 to 265
• INDIA's OBLIGATIONS ON AGRICULTURE IPRs :
• AWEARNESS OF INTELLECTUAL PROPERTY RIGHTS
• Policy Direction
• Awareness Generation and Literacy in IPR
• Agriculture IPR Education, Training and Human
Resource Development
• Strengthening the Institutional Mechanism—Legal, Regulatory
and Administrative
• Strengthening the Policy Area
• Harnessing IP-linked Technical Opportunities in Agriculture
• linkage and Cooperation
• Origin of the material and access to benefit sharing
• The need to protect Traditional Knowledge
• The Public debate in India on legislative changes on IPRs:
• Protection to Agriculture Sector
• Vital Role of the Public Sector and the CGIAR System
• Farming systems reformation
CHAPTER – IX ------------- Page no .266 to 274
CONCLUSION and SUGGESTION:
• Protection to Agriculture Innovation
• Evolution and Impact of IPR in India
• Legislative gaps:
• Weak enforceability of IPR:
• Administrative and affordability issues
• Misappropriation of traditional knowledge:
Bibliography ------------- Page no 275 to 276
-------------------------------------
CHAPTER-I
INTRODUCTION:
Intellectual property rights (IPRs) can be broadly defined as legal rights established over creative or inventive ideas. There are two broad categories of IPRs: one, industrial property covering IPRs such as patents, trademarks, geographical indications and industrial designs; copyright and related rights covering artistic and literary works, performances, broadcasts and the like. IPRs that do not fit into this classical division are termed sui generis, meaning one-of-its-kind. Such sui generis rights include those covering lay-out designs of semi conductor chips and plant breeders’ rights. This dissertation will in the next section distinguish the IPRs relevant to agriculture and explain these rights. Following the Agreement on Trade related aspects of Intellectual Property Rights (TRIPS) in the World Trade Organization (WTO), most countries are committed to the provision of certain Minimum standards for the protection of intellectual property. Such intellectual property rights (IPRs) raise crucial issues for the future development of agriculture and are particularly important for a developing country like India. These issues are being extensively debated in India and have contributed to the preparation of legislation on IPRs with respect to plant variety protection, patents and geographical indications.
In today’s globalised economy, the organization are protecting its intellectual property by adopting the available measures in form of patents, copyright, trademark etc. but besides these popular IP rights there are other IP rights not so popular but which are recently drawing attentions all over t he world- Confidential Information and Trade Secret. Confidential information and trade secrets are protected under the common law and there are no statutes that specifically govern the protection of the same. In order to protect trade secrets and confidential information, watertight agreements should be agreed upon, and they should be supported by sound policies and procedures. Protection of Confidential Information in the Hands of Employees In this information age, it’s imperative that a business protects its new formula, product, technology, customer lists, or future business plans. In the global marketplace, Indian corporations are often required to comply with foreign laws and are likely to be exposed to liabilities for violation of confidential information or trade secrets of their business partners or third parties. For example, the U.S. Economic Espionage Act, 1996 imposes criminal liability (including fines and prison sentences) on any person who intentionally or knowingly steals a trade secret, knowingly receives, or purchases a wrongfully obtained trade secret. The standards for protection have to be tailored to address the risks associated with rapid advancement in technology and communications. The standards accepted today may become inadequate tomorrow. However, one constant factor is the presence of a corporate culture imbued with information protection values. The employees of an organization are privy to confidential information and trade secrets on a daily basis. In the absence of any specific Indian statute conferring protection on such information in the hands of employees, recourse has to be taken to common law rights and contractual obligations.
Agriculture is the cultivation of animals, plants, fungi and other life forms for food, fiber, and other products used to sustain life. Agriculture was the key implement in the rise of sedentary human civilization, whereby farming of domesticated species created food surpluses that nurtured the development of civilization. The study of agriculture is known as agricultural science. Agriculture is also observed in certain species of ant and termite, but generally speaking refers to human activities.
The history of agriculture dates back thousands of years, and its development has been driven and defined by greatly different climates, cultures, and technologies. However, all farming generally relies on techniques to expand and maintain the lands suitable for raising domesticated species. For plants, this usually requires some form of irrigation, although there are methods of dryland farming; pastoral herding on rangeland is still the most common means of raising livestock. In the developed world, industrial agriculture based on large-scale monoculture has become the dominant system of modern farming, although there is growing support for sustainable agriculture.
Modern agronomy, plant breeding, pesticides and fertilizers, and technological improvements have sharply increased yields from cultivation, but at the same time have caused widespread ecological damage and negative human health effects. Selective breeding and modern practices in animal husbandry such as intensive pig farming have similarly increased the output of meat, but have raised concerns about animal cruelty and the health effects of the antibiotics, growth hormones, and other chemicals commonly used in industrial meat production.
The major agricultural products can be broadly grouped into foods, fibers, fuels, and raw materials. In the 21st century, plants have been used to grow befouled, biopharmaceuticals, Bioplastics, and pharmaceuticals. Specific foods include cereals, vegetables, fruits, and meat. Fibers include cotton, wool, hemp, silk and flax. Raw materials include lumber and bamboo. Other useful materials are produced by plants, such as resins. Bibfuls include methane from biomass, ethanol, and biodiesel. Cut flowers, nursery plants, tropical fish and birds for the pet trade are some of the ornamental products.
In 2007, one third of the world's workers were employed in agriculture. The services sector has overtaken agriculture as the economic sector employing the most people worldwide. Despite the size of its workforce, agricultural production accounts for less than five percent of the gross world product an aggregate of all gross domestic products.
Agriculture has played a key role in the development of human civilization. Until the Industrial Revolution, the vast majority of the human population labored in agriculture. The type of agriculture they developed was typically subsistence agriculture in which farmers raised most of their crops for consumption on farm, and there was only a small portion left over for the payment of taxes, dues, or trade. In subsistence agriculture cropping decisions are made with an eye to what the family needs for food, and to make clothing, and not the world marketplace. Development of agricultural techniques has steadily increased agricultural productivity, and the widespread diffusion of these techniques during a time period is often called an agricultural revolution. A remarkable shift in agricultural practices has occurred over the past century in response to new technologies, and the development of world markets. This also led to technological improvements in agricultural techniques, such as the Haber-Bosch method for synthesizing ammonium nitrate which made the traditional practice of recycling nutrients with crop rotation and animal manure less necessary.
Synthetic nitrogen, along with mined rock phosphate, pesticides and mechanization, have greatly increased crop yields in the early 20th century. Increased supply of grains has led to cheaper livestock as well. Further, global yield increases were experienced later in the 20th century when high-yield varieties of common staple grains such as rice, wheat, and corn (maize) were introduced as a part of the Green Revolution. The Green Revolution exported the technologies (including pesticides and synthetic nitrogen) of the developed world to the developing world. Thomas Malthus famously predicted that the Earth would not be able to support its growing population, but technologies such as the Green Revolution have allowed the world to produce a surplus of food.
Many governments have subsidized agriculture to ensure an adequate food supply. These agricultural subsidies are often linked to the production of certain commodities such as wheat, corn (maize), rice, soybeans, and milk. These subsidies, especially when instituted by developed countries have been noted as protectionist, inefficient, and environmentally damaging.
In the past century agriculture has been characterized by enhanced productivity, the use of synthetic fertilizers and pesticides, selective breeding, mechanization, water contamination, and farm subsidies. Proponents of organic farming such as Sir Albert Howard argued in the early 20th century that the overuse of pesticides and synthetic fertilizers damages the long-term fertility of the soil. While this feeling lay dormant for decades, as environmental awareness has increased in the 21st century there has been a movement towards sustainable agriculture by some farmers, consumers, and policymakers.
In recent years there has been a backlash against perceived external environmental effects of mainstream agriculture, particularly regarding water pollution, resulting in the organic movement. One of the major forces behind this movement has been the European Union, which first certified organic food in 1991 and began reform of its Common Agricultural Policy (CAP) in 2005 to phase out commodity-linked farm subsidies, also known as decoupling. The growth of organic farming has renewed research in alternative technologies such as integrated pest management and selective breeding. Recent mainstream technological developments include genetically modified food.
In late 2007, several factors pushed up the price of grains consumed by humans as well as used to feed poultry and dairy cows and other cattle, causing higher prices of wheat (up 58%), soybean (up 32%), and maize (up 11%) over the year. Food riots took place in several countries across the world. Contributing factors included drought in Australia and elsewhere, increasing demand for grain-fed animal products from the growing middle classes of countries such as China and India, diversion of food grain to biofuel production and trade restrictions imposed by several countries. An epidemic of stem rust on wheat caused by race Ug99 is currently spreading across Africa and into Asia and is causing major concern. Approximately 40% of the world's agricultural land is seriously degraded. In Africa, if current trends of soil degradation continue the continent might be able to feed just 25% of its population by 2025, according to UNU's Ghana-based Institute for Natural Resources in Africa.
Agricultural practices such as irrigation, crop rotation, fertilizers, and pesticides were developed long ago, but have made great strides in the past century. The history of agriculture has played a major role in human history, as agricultural progress has been a crucial factor in worldwide socio-economic change. Division of labor in agricultural societies made commonplace specializations rarely seen in hunter-gatherer cultures. So, too, are arts such as epic literature and monumental architecture, as well as codified legal systems. When farmers became capable of producing food beyond the needs of their own families, others in their society were freed to devote themselves to projects other than food acquisition. Historians and anthropologists have long argued that the development of agriculture made civilization possible. The total world population probably never exceeded 15 million inhabitants before the invention of agriculture.
The Fertile Crescent of Western Asia, Egypt, and India were sites of the earliest planned sowing and harvesting of plants that had previously been gathered in the wild. Independent development of agriculture occurred in northern and southern China, Africa's Sahel, New Guinea and several regions of the Americas. The eight so-called Neolithic founder crops of agriculture appear: first emmer wheat and einkorn wheat, then hulled barley, peas, lentils, bitter vetch, chick peas and flax. By 7000 BC, small-scale agriculture reached Egypt. From at least 7000 BC the Indian subcontinent saw farming of wheat and barley, as attested by archaeological excavation at Merger in Balochistan in what is present day Pakistan. By 6000 BC, mid-scale farming was entrenched on the banks of the Nile. This, as irrigation had not yet matured sufficiently. About this time, agriculture was developed independently in the Far East, with rice, rather than wheat, as the primary crop. Chinese and Indonesian farmers went on to domesticate taro and beans including mung, soy and azuki. To complement these new sources of carbohydrates, highly organized net fishing of rivers, lakes and ocean shores in these areas brought in great volumes of essential protein. Collectively, these new methods of farming and fishing inaugurated a human population boom that dwarfed all previous expansions and continues today.
By 5000 BC, the Sumerians had developed core agricultural techniques including large-sc ale intensive cultivation of land, monocropping, organized irrigation, and the use of a specialized labor force, particularly along the waterway now known as the Shatt al-Arab, from its Persian Gulf delta to the confluence of the Tigris and Euphrates. Domestication of wild aurochs and maudlin into cattle and sheep, respectively, ushered in the large-scale use of animals for food/fiber and as beasts of burden. The shepherd joined the farmer as an essential provider for sedentary and semi nomadic societies. Maize, manioc, and arrowroot were first domesticated in the Americas as far back as 5200 BC.
The potato, tomato, pepper, squash, several varieties of bean, tobacco, and several other plants were also developed in the Americas, as was extensive terracing of steep hillsides in much of Andean South America. The Greeks and Romans built on techniques pioneered by the Sumerians, but made few fundamentally new advances. Southern Greeks struggled with very poor soils, yet managed to become a dominant society for years. The Romans were noted for an emphasis on the cultivation of crops for trade.
In the same region, a parallel agricultural revolution occurred, resulting in some of the most important crops grown today. In Mesoamerica wild teosinte was transformed through human selection into the ancestor of modern maize, more than 6000 years ago. It gradually spread across North America and was the major crop of Native Americans at the time of European exploration. Other Mesoamerican crops include hundreds of varieties of squash and beans. Cocoa was also a major crop in domesticated Mexico and Central America. The turkey, one of the most important meat birds, was probably domesticated in Mexico or the U.S. Southwest. In the Andes region of South America the major domesticated crop was potatoes, domesticated perhaps 5000 years ago. Large varieties of beans were domesticated, in South America, as well as animals, including llamas, alpacas, and guinea pigs. Coca, still a major crop, was also domesticated in the Andes.
A minor center of domestication, the indigenous people of the Eastern U.S. appear to have domesticated numerous crops. Sunflowers, tobacco, varieties of squash and Chenopodium, as well as crops no longer grown, including marsh elder and little barley were domesticated. Other wild foods may have undergone some selective cultivation, including wild rice and maple sugar. The most common varieties of strawberry were domesticated from Eastern North America.
By 3500 BC, the simplest form of the plough was developed, called the arid. Before this period, simple digging sticks or hoes were used. These tools would have also been easier to transport, which was a benefit as people only stayed until the soil's nutrients were depleted. However, through excavations in Mexico it has been found that the continuous cultivating of smaller pieces of land would also have been a sustaining practice. Additional research in central Europe later revealed that agriculture was indeed practiced at this method. For this method, ards were thus much more efficient than digging sticks.
After 1492, a global exchange of previously local crops and livestock breeds occurred. Key crops involved in this exchange included the tomato, maize, potato, manioc, cocoa bean and tobacco going from the New World to the Old, and several varieties of wheat, spices, coffee, and sugar cane going from the Old World to the New. The most important animal exportation from the Old World to the New were those of the horse and dog (dogs were already present in the pre-Columbian Americas but not in the numbers and breeds suited to farm work). Although not usually food animals, the horse (including donkeys and ponies) and dog quickly filled essential production roles on western-hemisphere farms.
The potato became an important staple crop in northern Europe. Since being introduced by Portuguese in the 16th century, maize and manioc have replaced traditional African crops as the continent's most important staple food crops.
By the early 19th century, agricultural techniques, implements, seed stocks and cultivar had so improved that yield per land unit was many times that seen in the Middle Ages. Although there is a vast and interesting history of crop cultivation before the dawn of the 20th century, there is little question that the work of Charles Darwin and Greg or Mendel created the scientific foundation for plant breeding that led to its explosive impact over the past 150 years. With the rapid rise of mechanization in the late 19th century and the 20th century, particularly in the form of the tractor, farming tasks could be done with a speed and on a scale previously impossible. These advances have led to efficiencies enabling certain modern farms in the United States, Argentina, Israel, Germany, and a few other nations to output volumes of high-quality produce per land unit at what may be the practical limit.
The Haber-Bosch method for synthesizing ammonium nitrate represented a major breakthrough and allowed crop yields to overcome previous constraints. In the past century agriculture has been characterized by enhanced productivity, the substitution of labor for synthetic fertilizers and pesticides, water pollution, and farm subsidies. In recent years there has been a backlash against the external environmental effects of conventional agriculture, resulting in the organic movement.
The cereals rice, corn, and wheat provide 60% of human food supply. Between 1700 and 1980, "the total area of cultivated land worldwide increased 466%" and yields increased dramatically, particularly because of selectively bred high-yielding varieties, fertilizers, pesticides, irrigation, and machinery.[39] For example, irrigation increased corn yields in eastern Colorado by 400 to 500% from 1940 to 1997.
However, concerns have been raised over the sustainability of intensive agriculture. Intensive agriculture has become associated with decreased soil quality in India and Asia, and there has been increased concern over the effects of fertilizers and pesticides on the environment, particularly as population increases and food demand expands. The monocultures typically used in intensive agriculture increase the number of pests, which are controlled through pesticides. Integrated pest management (IPM), which "has been promoted for decades and has had some notable successes" has not significantly affected the use of pesticides because policies encourage the use of pesticides and IPM is knowledge-intensive?
Although the "Green Revolution" significantly increased rice yields in Asia, yield increases have not occurred in the past 15–20 years. The genetic "yield potential" has increased for wheat, but the yield potential for rice has not increased since 1966, and the yield potential for maize has "barely increased in 35 years". It takes a decade or two for herbicide-resistant weeds to emerge, and insects become resistant to insecticides within about a decade. Crop rotation helps to prevent resistances.
• Agricultural exploration expeditions
Since the late 19th century, have been mounted to find new species and new agricultural practices in different areas of the world. Two early examples of expeditions include Frank N. Meyer's fruit- and nut-collecting trip to China and Japan from 1916-1918 and the Dorsett-Morse Oriental Agricultural Exploration Expedition to China, Japan, and Korea from 1929-1931 to collect soybean germplasm to support the rise in soybean agriculture in the United States.
In 2009, the agricultural output of China was the largest in the world, followed by the European Union, India and the United States, according to the International Monetary Fund. Economists measure the total factor productivity of agriculture and by this measure agriculture in the United States is roughly 2.6 times more productive than it was in 1948.
Six countries - the US, Canada, France, Australia, Argentina and Thailand - supply 90% of grain exports. The United States controls almost half of world grain exports. Water deficits, which are already spurring heavy grain imports in numerous middle-sized countries, including Algeria, Iran, Egypt, and Mexico, may soon do the same in larger countries, such as China or India.
• Cropping systems
Very among farms depending on the available resources and constraints; geography and climate of the farm; government policy; economic, social and political pressures; and the philosophy and culture of the farmer.[47][48] Shifting cultivation (or slash and burn) is a system in which forests are burnt, releasing nutrients to support cultivation of annual and then perennial crops for a period of several years.
Then the plot is left fallow to regroup forest, and the farmer moves to a new plot, returning after many more years (10-20). This fallow period is shortened if population density grows, requiring the input of nutrients (fertilizer or manure) and some manual pest control. Annual cultivation is the next phase of intensity in which there is no fallow period. This requires even greater nutrient and pest control inputs.
Further industrialization lead to the use of monocultures, when one cultivar is planted on a large acreage. Because of the low biodiversity, nutrient use is uniform and pests tend to build up, necessitating the greater use of pesticides and fertilizers.[48] Multiple cropping, in which several crops are grown sequentially in one year, and intercropping, when several crops are grown at the same time are other kinds of annual cropping systems known as polycultures.
• Tropical environments
All of these cropping systems are practiced. In subtropical and arid environments, the timing and extent of agriculture may be limited by rainfall, either not allowing multiple annual crops in a year, or requiring irrigation. In all of these environments perennial crops are grown (coffee, chocolate) and systems are practiced such as agro forestry. In temperate environments, where ecosystems were predominantly grassland or prairie, highly productive annual cropping is the dominant farming system.
The last century has seen the intensification, concentration and specialization of agriculture, relying upon new technologies of agricultural chemicals (fertilizers and pesticides), mechanization, and plant breeding (hybrids and GMO's). In the past few decades, a move towards sustainability in agriculture has also developed, integrating ideas of socio-economic justice and conservation of resources and the environment within a farming system. This has led to the development of many responses to the conventional agriculture approach, including organic agriculture, urban agriculture, community supported agriculture, ecological or biological agriculture, integrated farming and holistic management, as well as an increased trend towards agricultural diversification.
• Animals
Including horses, mules, oxen, camels, llamas, alpacas, and dogs, are often used to help cultivate fields, harvest crops, wrangle other animals, and transport farm products to buyers. Animal husbandry not only refers to the breeding and raising of animals for meat or to harvest animal products (like milk, eggs, or wool) on a continual basis, but also to the breeding and care of species for work and companionship. Livestock production systems can be defined based on feed source, as grassland - based, mixed, and landless.
• Grassland
Based livestock production relies upon plant material such as scrubland, rangeland, and pastures for feeding ruminant animals. Outside nutrient inputs may be used, however manure is returned directly to the grassland as a major nutrient source. This system is particularly important in areas where crop production is not feasible because of climate or soil, representing 30-40 million pastoralists. Mixed production systems use grassland, fodder crops and grain feed crops as feed for ruminant and monobasic (one stomach; mainly chickens and pigs) livestock. Manure is typically recycled in mixed systems as a fertilizer for crops. Approximately 68% of all agricultural land is permanent pastures used in the production of livestock.
• Landless systems
Rely upon feed from outside the farm, representing the de-linking of crop and livestock production found more prevalently in OECD member countries. In the U.S., 70% of the grain grown is fed to animals on feedlots. Synthetic fertilizers are more heavily relied upon for crop production and manure utilization becomes a challenge as well as a source for pollution.
• Tillage
Is the practice of plowing soil to prepare for planting or for nutrient incorporation or for pest control? Tillage varies in intensity from conventional to no-till. It may improve productivity by warming the soil, incorporating fertilizer and controlling weeds, but also renders soil more prone to erosion, triggers the decomposition of organic matter releasing CO2, and reduces the abundance and diversity of soil organisms.
• Pest control
Includes the management of weeds, insects/mites, and diseases. Chemical (pesticides), biological (biocontrol), mechanical (tillage), and cultural practices are used. Cultural practices include crop rotation, culling, cover crops, intercropping, composting, avoidance, and resistance. Integrated pest management attempts to use all of these methods to keep pest populations below the number which would cause economic loss, and recommends pesticides as a last resort.
• Nutrient management
Includes both the source of nutrient inputs for crop and livestock production, and the method of utilization of manure produced by livestock. Nutrient inputs can be chemical inorganic fertilizers, manure, green manure, compost and mined minerals. Crop nutrient use may also be managed using cultural techniques such as crop rotation or a fallow period. Manure is used either by holding livestock where the feed crop is growing, such as in managed intensive rotational grazing, or by spreading either dry or liquid formulations of manure on cropland or pastures.
• Water management
Is where rainfall is insufficient or variable, which occurs to some degree in most regions of the world. Some farmers use irrigation to supplement rainfall. In other areas such as the Great Plains in the U.S. and Canada, farmers use a fallow year to conserve soil moisture to use for growing a crop in the following year. Agriculture represents 70% of freshwater use worldwide.
• food costs
In the United States, food costs attributed to processing, distribution, and marketing have risen while the costs attributed to farming have declined. This is related to the greater efficiency of farming, combined with the increased level of value addition (e.g. more highly processed products) provided by the supply chain. From 1960 to 1980 the farm share was around 40%, but by 1990 it had declined to 30% and by 1998, 22.2%. Market concentration has increased in the sector as well, with the top 20 food manufacturers accounting for half the food-processing value in 1995, over double that produced in 1954. As of 2000 the top six US supermarket groups had 50% of sales compared to 32% in 1992. Although the total effect of the increased market concentration is likely increased efficiency, the changes redistribute economic surplus from producers (farmers) and consumers, and may have negative implications for rural communities.
• Crop alteration
Crop alteration has been practiced by humankind for thousands of years, since the beginning of civilization. Altering crops through breeding practices changes the genetic make-up of a plant to develop crops with more beneficial characteristics for humans, for example, larger fruits or seeds, drought-tolerance, or resistance to pests. Significant advances in plant breeding ensued after the work of geneticist Greg or Mendel. His work on dominant and recessive alleles gave plant breeders a better understanding of genetics and brought great insights to the techniques utilized by plant breeders. Crop breeding includes techniques such as plant selection with desirable traits, self-pollination and cross-pollination, and molecular techniques that genetically modify the organism.
• Domestication of plants
Domestication of plants has, over the centuries increased yield, improved disease resistance and drought tolerance, eased harvest and improved the taste and nutritional value of crop plants. Careful selection and breeding have had enormous effects on the characteristics of crop plants. Plant selection and breeding in the 1920s and 1930s improved pasture (grasses and clover) in New Zealand. Extensive X-ray an ultraviolet induced mutagenesis efforts (i.e. primitive genetic engineering) during the 1950s produced the modern commercial varieties of grains such as wheat, corn (maize) and barley.
The Green Revolution popularized the use of conventional hybridization to increase yield many folds by creating "high-yielding varieties". For example, average yields of corn (maize) in the USA have increased from around 2.5 tons per hectare (t/ha) (40 bushels per acre) in 1900 to about 9.4 t/ha (150 bushels per acre) in 2001. Similarly, worldwide average wheat yields have increased from less than 1 t/ha in 1900 to more than 2.5 t/ha in 1990. South American average wheat yields are around 2 t/ha, African under 1 t/ha, Egypt and Arabia up to 3.5 to 4 t/ha with irrigation. In contrast, the average wheat yield in countries such as France is over 8 t/ha. Variations in yields are due mainly to variation in climate, genetics, and the level of intensive farming techniques (use of fertilizers, chemical pest control, growth control to avoid lodging).[67][68][69]
Genetic engineering
Genetically Modified Organisms (GMO) are organisms whose genetic material has been altered by genetic engineering techniques generally known as recombinant DNA technology. Genetic engineering has expanded the genes available to breeders to utilize in creating desired germlines for new crops. After mechanical tomato-harvesters were developed in the early 1960s, agricultural scientists genetically modified tomatoes to be more resistant to mechanical handling. More recently, genetic engineering is being employed in various parts of the world, to create crops with other beneficial traits. New research on woodland strawberry genome was found to be short and easy to manipulate. Researchers now have tools to improve strawberry flavors and aromas of cultivated strawberries as stated in a publication by Nature Genetics.
• Herbicide-tolerant GMO crops
Roundup Ready seed has a herbicide resistant gene implanted into its genome that allows the plants to tolerate exposure to glyph sate. Roundup is a trade name for a glyph sate-based product, which is a systemic, nonselective herbicide used to kill weeds. Roundup Ready seeds allow the farmer to grow a crop that can be sprayed with glyph sate to control weeds without harming the resistant crop. Herbicide-tolerant crops are used by farmers worldwide. Today, 92% of soybean acreage in the US is planted with genetically modified herbicide-tolerant plants.
With the increasing use of herbicide-tolerant crops, comes an increase in the use of glyph sate-based herbicide sprays. In some areas glyph sate resistant weeds have developed, causing farmers to switch to other herbicides. Some studies also link widespread glyph sate usage to iron deficiencies in some crops, which is both a crop production and a nutritional quality concern, with potential economic and health implications.
Insect-resistant GMO crops
Other GMO crops used by growers include insect-resistant crops, which have a gene from the soil bacterium Bacillus thuringiensis (Bt), which produces a toxin specific to insects. These crops protect plants from damage by insects; one such crop is Star link. Another is cotton, which accounts for 63% of US cotton acreage. Some believe that similar or better pest-resistance traits can be acquired through traditional breeding practices, and resistance to various pests can be gained through hybridization or cross-pollination with wild species. In some cases, wild species are the primary source of resistance traits; some tomato cultivars that have gained resistance to at least 19 diseases did so through crossing with wild populations of tomatoes.
• Costs and benefits of GMOs
Genetic engineers may someday develop transgenic plants which would allow for irrigation, drainage, conservation, sanitary engineering, and maintaining or increasing yields while requiring fewer fossil fuel derived inputs than conventional crops. Such developments would be particularly important in areas which are normally arid and rely upon constant irrigation, and on large scale farms. However, genetic engineering of plants has proven to be controversial. Many issues surrounding food security and environmental impacts have risen regarding GMO practices. For example, GMOs are questioned by some ecologists and economists concerned with GMO practices such as terminator seeds, which is a genetic modification that creates sterile seeds. Terminator seeds are currently under strong international opposition and face continual efforts of global bans.
• Patent protection
Another controversial issue is the patent protection given to companies that develop new types of seed using genetic engineering. Since companies have intellectual ownership of their seeds, they have the power to dictate terms and conditions of their patented product. Currently, ten seed companies control over two-thirds of the global seed sales. Vandana Shiva argues that these companies are guilty of biopiracy by patenting life and exploiting organisms for profit Farmers using patented seed are restricted from saving seed for subsequent plantings, which forces farmers to buy new seed every year. Since seed saving is a traditional practice for many farmers in both developing and developed countries, GMO seeds legally bind farmers to change their seed saving practices to buying new seed every year.
Locally adapted seeds are an essential heritage that has the potential to be lost with current hybridized crops and GMOs. Locally adapted seeds, also called land races or crop eco-types, are important because they have adapted over time to the specific microclimates, soils, other environmental conditions, field designs, and ethnic preference indigenous to the exact area of cultivation. Introducing GMOs and hybridized commercial seed to an area brings the risk of cross-pollination with local land races Therefore, GMOs pose a threat to the sustainability of land races and the ethnic heritage of cultures. Once seed contains transgenic material, it becomes subject to the conditions of the seed company that owns the patent of the transgenic material.
• Modern agriculture
Modern agriculture is a term used to describe the wide majority of production practices employed by America’s farmers. The term depicts the push for innovation, stewardship and advancements continually made by growers to sustainably produce higher-quality products with a reduced environmental impact. Intensive scientific research and robust investment in modern agriculture during the past 50 years has helped farmers double food production while essentially freezing the footprint of total cultivated farmland.[83][84]
• Safety
The agriculture industry works with government agencies and other organizations to ensure that farmers have access to the technologies required to support modern agriculture practices. Farmers are supported by education and certification programs that ensure they apply agricultural practices with care and only when required.
• Sustainability
Technological advancements help provide farmers with tools and resources to help reduce their environmental footprint and to make farming more sustainable.
New technologies have given rise to innovations like conservation tillage, a farming process which helps prevent land loss to erosion, water pollution and enhances carbon sequestration.[86]
The World Bank, the Bill & Melinda Gates Foundation and others have noted that integrated crop management is based on agro-ecological principles and can increase yields while reducing environmental damage.
• Affordability
The goal of modern agriculture practices is to help farmers provide an affordable supply of food to meet the demands of a growing population.[87] With modern agriculture, more crops can be grown on less land allowing farmers to provide an increased supply of food at an affordable price.
• Food safety, labeling and regulation
Food security issues also coincide with food safety and food labeling concerns. Currently a global treaty, the BioSafety Protocol, regulates the trade of GMOs. The EU currently requires all GMO foods to be labeled, whereas the US does not require transparent labeling of GMO foods. Since there are still questions regarding the safety and risks associated with GMO foods, some believe the public should have the freedom to choose and know what they are eating and require all GMO products to be labeled.
The Food and Agriculture Organization of the United Nations (FAO) leads international efforts to defeat hunger and provides a neutral forum where nations meet as equals to negotiate agreements and debate food policy and the regulation of agriculture. According to Dr. Samuel Jutzi, director of FAO's animal production and health division, lobbying by "powerful" big food corporations has stopped reforms that would improve human health and the environment. The "real, true issues are not being addressed by the political process because of the influence of lobbyists, of the true powerful entities," he said, speaking at the Compassion in World Farming annual forum. For example, recent proposals for a voluntary code of conduct for the livestock industry that would have provided incentives for improving standards for health, and environmental regulations, such as the number of animals an area of land can support without long-term damage, were successfully defeated due to large food company pressure.
• Environmental impact
Agriculture imposes external costs upon society through pesticides, nutrient runoff, excessive water usage, and assorted other problems. A 2000 assessment of agriculture in the UK determined total external costs for 1996 of £2,343 million, or £208 per hectare. A 2005 analysis of these costs in the USA concluded that cropland imposes approximately $5 to 16 billion ($30 to $96 per hectare), while livestock production imposes $714 million. Both studies concluded that more should be done to internalize external costs, and neither included subsidies in their analysis, but noted that subsidies also influence the cost of agriculture to society. Both focused on purely fiscal impacts. The 2000 review included reported pesticide poisonings but did not include speculative chronic effects of pesticides, and the 2004 review relied on a 1992 estimate of the total impact of pesticides.
Agriculture accounts for 70 per cent of withdrawals of freshwater resources. However, increasing pressure being placed on water resources by industry, cities and the involving befouled industry means that water scarcity is increasing and agriculture is facing the challenge of producing more food for the world's growing population with fewer water resources. Scientists are also realizing that water resources need to be allocated to maintain natural environmental services, such as protecting towns from flooding, cleaning ecosystems and supporting fish stocks. In the book Out of Water: From abundance to scarcity and how to solve the world's water problems, authors Colin Chartres and Samyukta Varma of the International Water Management Institute lay down a six-point plan of action for addressing the global challenge of producing sufficient food for the world with dwindling water resources. One of the actions they say is required is to ensure all water systems, such as lakes and rivers, have water allocated to environmental flow.
A key player who is credited to saving billions of lives because of his revolutionary work in developing new agricultural techniques is Norman Borlaug. His transformative work brought high-yield crop varieties to developing countries and earned him an unofficial title as the father of the Green Revolution.
• Livestock issues
A senior UN official and co-author of a UN report detailing this problem, Henning Seinfeld, said "Livestock are one of the most significant contributors to today's most serious environmental problems". Livestock production occupies 70% of all land used for agriculture, or 30% of the land surface of the planet. It is one of the largest sources of greenhouse gases, responsible for 18% of the world's greenhouse gas emissions as measured in CO2 equivalents. By comparison, all transportation emits 13.5% of the CO2. It produces 65% of human-related nitrous oxide (which has 296 times the global warming potential of CO2,) and 37% of all human-induced methane (which is 23 times as warming as CO2. It also generates 64% of the ammonia, which contributes to acid rain and acidification of ecosystems. Livestock expansion is cited as a key factor driving deforestation, in the Amazon basin 70% of previously forested area is now occupied by pastures and the remainder used for feed crops. Through deforestation and land degradation, livestock is also driving reductions in biodiversity.
• Land transformation and degradation
Land transformation, the use of land to yield goods and services, is the most substantial way humans alter the Earth's ecosystems, and is considered the driving force in the loss of biodiversity. Estimates of the amount of land transformed by humans vary from 39–50%. Land degradation, the long-term decline in ecosystem function and productivity, is estimated to be occurring on 24% of land worldwide, with cropland overrepresented.[97] The UN-FAO report cites land management as the driving factor behind degradation and reports that 1.5 billion people rely upon the degrading land. Degradation can be deforestation, desertification, soil erosion, mineral depletion, or chemical degradation (acidification and Stalinization).
• Eutrophication
Eutrophication, excessive nutrients in aquatic ecosystems resulting in algal blooms and anoxia, leads to fish kills, loss of biodiversity, and renders water unfit for drinking and other industrial uses. Excessive fertilization and manure application to cropland, as well as high livestock stocking densities cause nutrient (mainly nitrogen and phosphorus) runoff and leaching from agricultural land. These nutrients are major no point pollutants contributing to eutrophication of aquatic ecosystems.
• Pesticides
Pesticide use has increased since 1950 to 2.5 million tons annually worldwide, yet crop loss from pests has remained relatively constant.[99] The World Health Organization estimated in 1992 that 3 million pesticide poisonings occur annually, causing 220,000 deaths.[100] Pesticides select for pesticide resistance in the pest population, leading to a condition termed the 'pesticide treadmill' in which pest resistance warrants the development of a new pesticide.
An alternative argument is that the way to 'save the environment' and prevent famine is by using pesticides and intensive high yield farming, a view exemplified by a quote heading the Center for Global Food Issues website: 'Growing more per acre leaves more land for nature'. However, critics argue that a trade-off between the environment and a need for food is not inevitable, and that pesticides simply replace good agronomic practices such as crop rotation.
• Climate change
Climate change has the potential to affect agriculture through changes in temperature, rainfall (timing and quantity), CO2, solar radiation and the interaction of these elements. Agriculture can both mitigate or worsen global warming. Some of the increase in CO2 in the atmosphere comes from the decomposition of organic matter in the soil, and much of the methane emitted into the atmosphere is caused by the decomposition of organic matter in wet soils such as rice paddies. Further, wet or anaerobic soils also lose nitrogen through gentrification, releasing the greenhouse gases nitric oxide and nitrous oxide.[107] Changes in management can reduce the release of these greenhouse gases, and soil can further be used to sequester some of the CO2 in the atmosphere.[106]
• International economics and agriculture
Differences in economic development, population density and culture mean that the farmers of the world operate under very different conditions.
A US cotton farmer may receive US$230[108] in government subsidies per acre planted (in 2003), while farmers in Mali and other third-world countries do without. When prices decline, the heavily subsidized US farmer is not forced to reduce his output, making it difficult for cotton prices to rebound, but his Mali counterpart may go broke in the meantime.
A livestock farmer in South Korea can calculate with a (highly subsidized) sales price of US$1300 for a calf produced. A South American Mercosur country rancher calculates with a calf's sales price of US$120–200 (both 2008 figures).[110] With the former, scarcity and high cost of land is compensated with public subsidies, the latter compensates absence of subsidies with economics of scale and low cost of land.
In the Peoples Republic of China, a rural household's productive asset may be one hectare of farmland. In Brazil, Paraguay and other countries where local legislature allows such purchases, international investors buy thousands of hectares of farmland or raw land at prices of a few hundred US$ per hectare.
• Energy and agriculture
Since the 1940s, agricultural productivity has increased dramatically, due largely to the increased use of energy-intensive mechanization, fertilizers and pesticides. The vast majority of this energy input comes from fossil fuel sources. Between 1950 and 1984, the Green Revolution transformed agriculture around the globe, with world grain production increasing by 250% as world population doubled. Modern agriculture's heavy reliance on petrochemicals and mechanization has raised concerns that oil shortages could increase costs and reduce agricultural output, causing food shortages.
Modern or industrialized agriculture is dependent on fossil fuels in two fundamental ways: 1) direct consumption on the farm and 2) indirect consumption to manufacture inputs used on the farm. Direct consumption includes the use of lubricants and fuels to operate farm vehicles and machinery; and use of gas, liquid propane, and electricity to power dryers, pumps, lights, heaters, and coolers. American farms directly consumed about 1.2 exajoules (1.1 quadrillion BTU) in 2002, or just over 1 percent of the nation's total energy.
Indirect consumption is mainly oil and natural gas used to manufacture fertilizers and pesticides, which accounted for 0.6 exajoules (0.6 quadrillion BTU) in 2002. The energy used to manufacture farm machinery is also a form of indirect agricultural energy consumption, but it is not included in USDA estimates of U.S. agricultural energy use. Together, direct and indirect consumption by U.S. farms accounts for about 2 percent of the nation's energy use. Direct and indirect energy consumption by U.S. farms peaked in 1979, and has gradually declined over the past 30 years.
Food systems encompass not just agricultural production, but also off-farm processing, packaging, transporting, marketing, consumption, and disposal of food and food-related items. Agriculture accounts for less than one-fifth of food system energy use in the United States.
In 2007, higher incentives for farmers to grow non-food bio fuel crops combined with other factors (such as over-development of former farm lands, rising transportation costs, climate change, growing consumer demand in China and India, and population growth) to cause food shortages in Asia, the Middle East, Africa, and Mexico, as well as rising food prices around the globe. As of December 2007, 37 countries faced food crises, and 20 had imposed some sort of food-price controls. Some of these shortages resulted in food riots and even deadly stampedes.
The biggest fossil fuel input to agriculture is the use of natural gas as a hydrogen source for the Haber-Bosch fertilizer-creation process. Natural gas is used because it is the cheapest currently available source of hydrogen. When oil production becomes so scarce that natural gas is used as a partial stopgap replacement, and hydrogen use in transportation increases, natural gas will become much more expensive. If the Haber Process is unable to be commercialized using renewable energy (such as by electrolysis) or if other sources of hydrogen are not available to replace the Haber Process, in amounts sufficient to supply transportation and agricultural needs, this major source of fertilizer would either become extremely expensive or unavailable. This would either cause food shortages or dramatic rises in food prices.
• Mitigation of effects of petroleum shortages
can be more attractive than conventional practices that use petroleum-based pesticides, herbicides, or fertilizers. Some farmers using modern organic-farming methods have reported yields as high as those available from conventional farming. Organic farming may however be more labor-intensive and would require a shift of the workforce from urban to rural areas. The reconditioning of soil to restore nutrients lost during the use of monoculture agriculture techniques also takes time.
It has been suggested that rural communities might obtain fuel from the bio char and syn fuel process, which uses agricultural waste to provide charcoal fertilizer, some fuel and food, instead of the normal food vs fuel debate. As the syn fuel would be used on-site, the process would be more efficient and might just provide enough fuel for a new organic-agriculture fusion.
It has been suggested that some transgenic plants may some day be developed which would allow for maintaining or increasing yields while requiring fewer fossil-fuel-derived inputs than conventional crops. The possibility of success of these programs is questioned by ecologists and economists concerned with unsustainable GMO practices such as terminator seeds.
While there has been some research on sustainability using GMO crops, at least prominent multi-year attempt by Monsanto Company has been unsuccessful, though during the same period traditional breeding techniques yielded a more sustainable variety of the same crop.
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Chapter II
IPRs RELEVANT TO AGRICULTURE:
Several of the IPRs mentioned above are relevant to the agricultural sector in that they can be used to protect goods or services produced in the agricultural sector. These are mainly patents, plant breeders’ rights, trademarks, geographical indications and trade secrets. It is possible to include lay-out designs for chips that are designed to perform certain functions related to agriculture, but these are assumed to be incorporated in machines produced in the industrial sector. Patents are probably the most important IPR today for agricultural goods and services as they provide, wherever these are available, the strongest protection for patentable plants and animals and biotechnological processes for their production. Patents universally give the patentee the right to prevent third parties from making, using or selling the patented product or process. Patents, however, have to be disclosed to the public through the patent documents. This enables researchers to develop further useful products or services. However, not all countries allow the patenting of plants and animals or even microorganisms or biotechnological processes.
Biotechnology is the sector that holds the most potential for advances in agriculture to improve productivity. Biotechnology R&D is mostly concentrated in the hands of large multinational enterprises in the US, Europe and Japan inventive and useful technical intervention by man. Another landmark case was the patent granted to the ‘Harvard nocuous’, useful in research on cancer.
The European Union has been slower to follow suit on the patenting of plants and animals due to the opposition it faced from environmental activists in the European Parliament.
This has now been largely overcome with the imminent finalization of the new Biotechnology Directive by the European Parliament, authorizing the grant of patents to plants and animals, with limited exceptions.
Thus, research on the cloning of animals, which is advancing rapidly, would be eligible for patents in at least some developed countries. Many countries have developed plant breeders' rights to reward conventional plant breeding efforts. Such sui generis protection is weaker than patent protection in that the right holders can only prevent third parties from commercially exploiting the protected material. The criteria used to grant such protection is also lower than that used to determine patentability as these are distinctness, i.e. distinguishable from earlier known varieties, uniformity i.e. display of the same essential characteristics in every plant and stability i.e. the retention of the essential characteristics on reproduction. Such protection encourages breeding efforts in the private sector. Historically, in developing countries, such efforts have emanated from the public sector or from international research institutions. It is only in recent years that developing countries have begun to institute such protection. Marks used in commerce can be applied to both agricultural and industrial products and services. For instance, trademarks are used to market seeds or spraying services. The essential purpose of a trademark is to distinguish the goods and services of one enterprise from another, thus preventing deception of the consumer. Such protection prevents the wrongful use of commercial marks and is not limited in time, although registration may have to be renewed from time to time. Almost all countries in the world protect trademarks.
One category of commercial marks more often used in agriculture than industry are geographical indications, including appellations of origin. These are marks associated with products originating from a country, region or locality where the quality, reputation or other characteristics of the product are essentially attributable to its geographical origin. Most geographical indications relate to agricultural products or those derived from them, as in the case of wines and spirits. Protection of such marks prevents third parties from passing off their products as those originating in the given region. Famous examples are ‘Champagne’ for sparkling wine and ‘Roquefort’ for cheese from areas of these names in France or ‘Darjeeling’ for tea from this district in India. It is not necessary for these indications to be geographical names as in the case of ‘Feta’ for cheese from Greece or ‘Basmati’ for rice from India and Pakistan as there are no places, localities or regions with these names. Plant varieties developed with traditional know ledge and associated with a particular region can also be protected as geographical indications. The advantage in such protection is that it is not time-limited, unlike the case of plant patents or plant breeders’ rights. However, needless to say, commercial benefits can be derived from the protection of geographical indications only when the name becomes reasonably famous.
Trade secret protection can be used by the agricultural sector to protect, for instance, hybrid plant varieties. Thus, even in countries that do not recognize plant breeders’ rights, the use of hybrids gives a certain degree of appropriability as long as it can be kept secret. Trade secrets can be protected against third party misappropriation through laws relating to unfair competition or to restrictive trade practices or to contract law. In the United States there are separate trade secret laws at the State level. Protection of trade secrets is not limited in time but, unlike patents, the disadvantage of this type of protection is that it is lost the moment it is discovered independently by a third party4. The advantage, at least to the proprietor, is that, unlike patents, there is no obligation to disclose the inventive or creative ideas to society. Some developed countries protect test data submitted for obtaining marketing approval of agricultural chemicals from use by third parties for a limited period of time, generally 5 or 10 years. Such protection gives exclusive marketing rights to the originators as an incentive to recover the investment made in testing such agricultural chemicals. Although developing countries also require the submission of such test data, no exclusivity is conferred on the originator for any period of time. Information under common law and jurisprudence can be used against the unfair misappropriation of confidential information, although this would not, unlike plant breeders' rights, protect against independent discovery.
International Intellectual Property Law
Until recently the multilateral and plurilateral treaties administered by the World Intellectual Property Organization (WIPO) constituted the bulk of the international law on intellectual property. The relevant treaties for IPRs related to agriculture are the Paris Convention on the Protection of Industrial Property, 1883 as revised up to 1967, and related plurilateral treaties which deal with areas such as patents, trademarks, appellations of origin or unfair competition.
2.1 The Paris Convention –
Established certain minimum agreed standards and procedures for the treatment of industrial property, the most important of which were national treatment i.e. the same treatment for nationals and foreigners and the right of priority or the according of a grace period in the filing of industrial property applications in member states. However, it still left considerable freedom to individual members to tailor their laws according to their developmental and technological requirements. The Union International pour la Protections des Obtentions Vegetables (UPOV) or the International Union for the Protection of New Varieties of Plants has a multilateral treaty for the protection of new plant varieties which it administers in cooperation with the WIPO. The UPOV Convention facilitates a uniform formulation of the extent and scope of plant breeders’ rights.
The UPOV Convention - was signed in 1961, came into force in 1968 and was revised in 1972, 1978, and 1991. The 1978 version was in force till April 1998, when the 1991 version entered into force. There are at present 38 members of UPOV. The 1991 version substantially enlarges the scope of breeders’ rights and restricts farmers’ and researchers' exemptions, provides for a longer term of protection for the universe of species/genera of plants, although this can be introduced in a phased way. Very few developing countries have instituted plant variety protection and fewer are members of UPOV. Much of the freedom given under the Paris Convention was taken away by the Agreement on Trade Related aspects of Intellectual Property Rights (TRIPS) of the newly formed World Trade Organization (WTO). There are presently 132 members of WTO, with 30 more, including China and Russia, seeking accession. While TRIPS obliges the adherence to the substantive provisions of the Paris Convention, it goes further in limiting the freedom of countries on several aspects Developing country members of UPOV are Argentina, Chile, Colombia, Ecuador, Mexico, Paraguay, South Africa and Uruguay (Source: Diversity Vol. 13, No. 2 and 3, 1997, p.3). of their intellectual property laws. This agreement is a part of the single package of the results of the Uruguay Round that are binding on all members of the WTO and is intrinsically linked to the most important advantage of the multilateral trading system, namely, the most-favored-nation (muffin.) treatment. TRIPS obliges non-discriminatory treatment in terms of national treatment between nationals and others as well as muffin. treatment among nationals of all WTO members. TRIPS also lays down stringent standards for the protection and enforcement of intellectual property. The TRIPS Agreement of the WTO obliges members to either provide protection for plant varieties either through patents or through an effective sui generis law or through any combination of the two. While TRIPS calls for the institution of an effective sui generis system of plant variety protection, there is no reference to UPOV or a call to adhere to any version of it, making it the only exceptional case in TRIPS where the current international treaty on the subject is not referred to. More importantly, TRIPS obliges the patenting of micro-organisms and microbiological and non-biological processes for the production of plants and animals. It, however, presently allows the exclusion from patents of plants and animals and essentially biological processes for their production. Considerable freedom is, however, given in interpreting the criteria for patentability viz. novelty, non-obviousness and industrial applicability. Narrow or narrowly interpreted patent claims can resolve some of the issues arising from broad, blocking patents. It must be noted that TRIPS calls for "strong" process patents, strong in the sense that the rights of the patentee extend to the product made by the patented process and that there is a provision for the reversal of the burden of proof in any infringement proceedings. Such process patents are very similar in effect to product patents. It is yet unclear whether such an extension of rights would imply rights over the product, if where such products are explicitly excluded, as is the case of plants and animals. In other words, would a process patent for a genetically engineered animal extend to the animal itself? The provisions of Article 273 (b) of TRIPS concerning on biotechnological patents are to be reviewed by 1999 when it can be expected that pressure will build up to delete the exclusion for plants and animals.
2.2 The TRIPS agreement
Intellectual property rights (IPR) give creators the right to prevent others from using their inventions, designs or other creations. Copyright and related rights, trademarks (including service marks), geographical indications (place names), industrial designs, patens, layout designs and undisclosed information (including trade secrets) are the areas covered by the TRIPS agreement. The TRIPS agreement will protect these rights and bring them under common international rules. Industrial designs and layout designs will be protected for at least 10 years, patents for products and processes for at least 20 years.
The owner of any form of IPR can issue a license for someone else to produce or copy his trademark, work, design etc. Under certain conditions, governments have the right to take action to prevent anti-competitive licensing that abuses IPR’s. Besides this, the government should make sure that the owner of IPR receives assistance to prevent imports of pirated goods. When there are trade disputes over intellectual property rights, the WTO will settle them between its members.
Developing countries like Namibia have time until the year 2000 to ensure that their laws and practices conform with the TRIPS agreement. If a developing country did not provide product patent protection in a particular area of technology it has time until the year 2005 introduce the protection. Pharmaceutical, agricultural and chemical products are exempted from this regulation. Also ensures a universal, minimum level of protection of commercial marks such as trademarks and geographical indications. Geographical indications used on wines and spirits are given an absolute level of 10 protection where use, even without the likelihood of deception of the consumers, is prohibited. For the first time in international law, trade secrets have also been accorded the status of IPRs. The TRIPS Agreement goes beyond the provisions of the Paris Convention on unfair competition, explicitly introducing in Section 7, trade secret protection in international law and considerably strengthening it by extending the liability to third parties that induced breach of a trade secret. Under Section 7 protecting undisclosed information in the TRIPS Agreement, test data submitted for obtaining marketing approvals of new pharmaceutical and agricultural chemical products is protected against unfair commercial use. The provisions of this section lend themselves to various interpretations. Under the TRIPS Agreement, the protection granted for IPRs can be tempered by appropriate provisions in competition law, particularly relating to practices or conditions of licensing of IPRs which have an adverse effect on trade or transfer and dissemination of technology. In addition to international Intellectual property law, the Convention on Biological Diversity (CBD), concluded at 'Rio Earth Summit' in 1992, is an important landmark relevant to a discussion of IPRs and agriculture. The stated objectives of the CBD are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of benefits. There are two provisions relating to IPRs in the CBD. Much is made of the provision on compulsory access to and transfer of technologies relevant to conservation under fair and most favorable terms' given in Article 16 of this treaty. However, with the proviso that such access and transfer shall be consistent with the adequate and effective protection of IPRs, there is no cause to imagine that this treaty will force transfer of technology on any terms other than those set commercially in the market. Even the provision to cooperate to ensure that IPRs are supportive of and do not run counter to the objectives of the CBD is subject to international law, which now includes the TRIPS Agreement. Unfortunately, the fair and equitable sharing of benefits from the commercial use of genetic/biological resources or traditional/indigenous knowledge would remain as a good intention See ibid for a detailed discussion of these issues till there are internationally accepted legal instruments to implement these provisions. Material Transfer Agreements (MTAs) are in the nature of bilateral contracts which are to be voluntarily concluded and do not, by them ensure fairness. There are also as yet no internationally accepted ways to reward what are sometimes called community IPRs or CIRs i.e. indigenous or traditional knowledge passed down, usually orally, over many generations. Many feel that traditional knowledge should be registered so that it is not incorporated into patents without the knowledge or consent of the concerned communities. Consent would be given only after ensuring fair and equitable sharing of benefits. Others view rural, contemporary innovations as important for progress in agriculture and advocate the institution of new kind of IPRs, like some kind of a global registration system to cover these.
2.3 The GATS agreement
The GATS deals with international trade in services and covers the following commitment: If a country allows foreign competition in a sector, equal opportunities should be given to service providers from all other WTO members. In order to reach transparency, governments have to publish all relevant laws and regulations. Besides this, foreign companies and governments have to be served with all required information about regulation in any service sector on request.
Moreover, WTO members agreed to recognize other countries’ qualifications without discrimination, to grant each other access to their markets, to accept commitments concerning the opening of any market as bounded and to recognize the importance of a stable financial system.
Nevertheless, an exemption list of the principle of non-discrimination exists: This concerns preferential agreements in service on that some countries have been agreed before the WTO entered into force. Continue negotiations will effect in four areas: basic telecommunications, maritime transport, movement of natural persons and financial services. Also the rules dealing with subsidies, government procurement, safeguard measures and technical and qualified standard of products are areas that will be discussed in future negotiations.
2.4 WTO have an Agreement on Agriculture
GATT - the WTO’s predecessor - succeeded largely in reeing trade by removing barriers that cause obstacles to the movement of certain goods across borders. Until 1994 these multilateral rade rules applied predominantly to manufactured goods rather than agricultural products. Prior to this, major trading countries like the US and the EU had insisted on exemptions and waivers from GATT to allow them to continue providing massive subsidies to their agricultural sectors. The resulting artificial maintenance of high levels of production led to the sale of agricultural surpluses on the world market at prices below their cost of production, a practice known as dumping. Dumping has continued - increased even - since the creation of the WTO.
These distortions in agricultural trade led to pressure from many countries in the 1980s to establish multilateral trade rules to create a more fair and market-oriented agricultural trading system. The US and EU began showing interest primarily because their domestic agricultural subsidy programmed were becoming so expensive as to be unsustainable. Food-exporting developing countries favored rules as a means to stabilize and increase world prices for food exports, hoping that this would provide additional export earnings to alleviate poverty and to further development goals. Many developing country markets were already open to cheap and dumped agricultural products from the US and EC, due to International Monetary Fund (IMF) and World Bank structural adjustments programmed that required them to liberalize their economies and open their markets to foreign products. Furthermore, the most powerful set of actors in favor of an A o A were transnational commodity traders and processors, such as Cargill and Monsanto. These saw in the prospect of new global rules on agriculture trade the possibility of accessing new markets, particularly in developing countries, and thus the prospect of increasing concentration of the market share they already held.
In the Uruguay Round negotiations - which led to the creation of the WTO - states agreed in 1994 to create inter alia multilateral trade rules for the liberalization of agricultural goods. These rules are embodied in the WTO’s Agreement on Agriculture (AoA) which came into force, like the other WTO agreements, in 1995.
2.5 Why does free trade in agriculture not make everyone better off
In theory, trade liberalization enhances efficiency, thus enabling trading countries to make welfare gains. It is true that growth of agricultural production is one key to reducing poverty in many developing countries. It is also the case that agricultural imports can complement local production and provide alternative sources of nutrition and dietary choices. And exporting local produce can offer new markets and opportunities for employment and income.
• The Agreement on Agriculture
The AoA has three pillars: market access, domestic support and export subsidies aims to reduce border obstacles to imports of agricultural products, such as taxes and duties - commonly known as tariffs. Furthermore, countries had to abolish restrictions on the quantity of agricultural goods entering their market. All other barriers that were not tariffs, known as ‘non-tariff barriers’ and including health standards or packaging requirements, had to be converted into tariffs, a process known as “ratification.” The Special Safeguard (SSG) is a tariff mechanism that provides temporary protection against sudden import surges or falls in world prices. However, only countries that underwent ratification can apply the SSG. Many countries, particularly developing countries, did not undergotariffication because they did not have a significant amount of non-tariff barriers. In Asia, only Korea, Malaysia, the Philippines, Taiwan and Thailand are eligible to use the SSG - the rest are left with no mechanism to protect themselves from floods of food imports.
2.6 Which human rights are affected by the Agreement on Agriculture
Rights affected by the AoA include the right to an adequate standard of living, the right to work, the right to food, the right to health and the right to life (unavailability of food can lead to illness and death).These rights are set out in a range of legally-binding treaties including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). The ICESCR also requires that States “take steps individually and through international assistance and cooperation (…) to the maximum of […] available resources” towards realization of the rights set out in the Covenant. Moreover, the Committee on Economic, Social and Cultural Rights empha-
sized in its third General Comment that the ICESCR’s requirement that a state party take steps ‘to the maximum of available resources’ refers both to the resources available within a state and those available through international co-operation and assistance.
In Asia, the majority of people depend on the agricultural sector for employment and a source of income, guaranteeing the right to an adequate standard of living and the right to work. In India alone, 72% of the population lives in rural areas and the agricultural sector provides employment to about 60% of the country’s total labor force. This situation is true for many other Asian countries (see Box 6.4). Agricultural trade liberalization, promoted under the AoA, threatens the strong base of farmer-oriented agriculture in favor of industrialized and mechanized agriculture largely carried out and controlled by transnational commodity producers and traders from developed countries. The consequence is often a de facto discrimination against the poorest and most vulnerable sectors of society, contrary to human rights.
All agricultural products are subject to liberalization under the AoA. This is a concern especially with regard to staple foods that are vital for food security and which can guarantee the right to food. For example, the main food crop of Bhutan, Bangladesh, India, Nepal and Sri Lanka, is rice. A study on the import pattern of food grains in these countries reveals that most is not self-sufficient and are becoming increasingly dependent on rice imports. Over the period 1995 to 1999 the total import of rice in the South Asian region increased by 132%.7 This increases the risk that South Asia will face worsening food insecurity, and with it the adverse affects on the enjoyment of human rights such as the right to food, to health and to an adequate standard of living.
In effect, the TRIPS Agreement protects the rights of corporations, such as the biotechnology industry. To date, six multinationals controls around 70% of the patents held on staple food crops. This could have serious implications for farmers’ rights to save, use, re-use, exchange and sell seeds if it means, as it could, that farmers would have to pay patent duties to save, use or exchange seeds in the way they have done for centuries. Seed companies such as Monsanto and Jaffer Brothers are already active in the seed markets of Pakistan. Under TRIPS, the Government of Pakistan is obliged to protect the intellectual property rights of the seeds marketed by those companies. The patenting of seeds coupled with technologies such as “terminator” technology could have drastic effects on the human rights of farmers in all developing countries and is of
particular concern in Asia.
2.7 Anti-dumping, subsidies and safeguard measures
Binding tariffs, and applying them equally to all trading partners are the main principle of the WTO. Nevertheless, the WTO take actions against selling at an unfairly low price (dumping) and it allows special subsidies as well as emergency measures in order to limit imports temporarily.
If a company exports a product at a price lower than the price it charges on its own market, it is said to be “dumping” the product and an import duty can be charged as an anti-dumping measure. But this is only allowed if a detailed investigation shows that dumping is taking place and a domestic industry is being hurt.
The WTO distinguishes between prohibited subsidies that support exports of companies and distort international trade, actionable subsidies, which help domestic industries and are allowed as long as they do not hurt the importing party and non-actionable subsidies, which are only used for industrial research or other assistance and development activities. Least developed countries and developed countries with less than US $ 1,000 per capita GNP are exempted from the regulation of prohibited subsidies. Other developed countries have to stop their export subsidies until 2003.
A WTO member may restrict imports of product temporarily if its domestic industry is injured or threatened with injury caused by a surge in imports. These safeguard measures should not last more than four years, although it can be extended to eight years. When country restricts imports in order to safeguard its main producers, the exporting country can seek compensation through consultations or take equivalent protective actions.
2.8 Settling disputes
WTO members have agreed that if they believe fellow-members are violating trade rules, they will use the multilateral system of settling disputes instead of taking action unilaterally. In 1997, 19 of 71 cases had been settled out of court just through consultations, without going through the full panel process, which takes 15 months. The first stage is consultations between the governments concerned in order to settle their differences by themselves. If that fails the complaining country can ask for a panel to be appointed. The panel is like a tribunal, consisting of three experts from different countries who examine the evidence and decide which party is right. Either side can appellate a panel’s ruling but it has to be based on point of law. If the country that is the target of the complaints does not follow the recommendations of the panel report it has to enter into negotiations with the complaining country. If the contracting parties do not agree within 20 days, sanctions should be imposed. Implications for developing and least developed countries Provisions of the agreement.
More than 75% of the WTO members are developing countries. Actually, the developing countries’ share of world trade is less than 20%. To the opinion of the WTO low-income countries gain economic and political independence through a membership of the WTO because of the introduction of domestic reforms, special provisions for developing countries and a strengthened multilateral trading system. The WTO agreement contains special provisions for developing countries, e.g. non-reciprocity in trade negotiations between developed and developing countries and the WTO Secretariat provides technical assistance. Besides this, the developing countries have extra time to fulfill the WTO commitments, greater market access is granted and they get assistance in order to achieve the international standards required. Special technical cooperation, that should help to build the necessary institutions on training the people, is also offered.
Moreover, a plan of action for least-developed countries has been established in order to help them to improve their ability to participate in the multilateral system. Developed countries will examine how the least-developed countries could improve access to their markets. The World Bank, the International Monetary Fund (IMF) and the UN Development Programmed support this plan. The WTO Committee on Trade and Development, which helps to implement this structure, assists developing countries further with technical cooperation and supports preferential arrangements such as the Common Market for Eastern and Southern Africa (COMESA). The goal is to increase their economic growth due to a raise in exports of manufactured goods so that they become less dependent on exports of primary goods.
2.9 Negative impacts
Although the industrial countries agreed to grant developing countries access to their markets, e.g. through reduced tariffs, selected products like fish and textiles will continue to have high tariffs. Another issue that worries developing countries is the erosion of preferences: special tariff concessions granted by developed countries on imports from certain developing countries become less meaningful if the normal tariff rates are cut so that the difference between the normal and the preferential rate is reduced. That implicates income losses for whole Africa.
Besides this, least developed countries fear that agricultural reforms will lead to increases in world prices what will be bad for poor food-importing countries. On the other hand, an increase in world prices for primary products will help developing countries to increase their export proceeds.
Another concern of developing and least developed countries is that the TRIPS agreement protects mainly the intellectual property of large multinational firms and worsens inequalities. Nevertheless, they accepted the agreement. Some developing countries, like Namibia, introduced already intellectual property protection regimes in inter-regional trade agreements.
2.10 Critical comments on the WTO agreement
The WTO believes in the “free market effect” where the “invisible and” Adam Smith) navigates offer and demand and creates a balance. Therefore free trade, free investment and an independent National Bank that guarantees a stable currency are necessary. But as the world economic crisis 1929 and the break down of the Far East market 1998 show free trade without regulations does not work. Developing countries and transition economies are not strong enough to stand the international competition and will lose economic independence if its exchange rates decline. Of course it is important for developing countries, like Namibia, to participate in interregional and international trade but due to their low productivity they need preferential access to international markets, which should not be granted to industrial countries exporting to them.
Positive voices like “The Namibian Trade Digest” see a more secure and open market for African exports due to the WTO agreement, which includes the agricultural sector, as a single new tariff will replace protective measures. To my opinion it seems very naive to believe in better export opportunities for primary products because of a single tariff: Most of the agricultural exports need subsidies in order to offer competitive prices on the world market. Moreover, international agricultural markets, like the EU, produce much more than they need and pay subsidies for lower production; they are not interested in African agricultural products. Therefore, African countries should concentrate on interregional trade under rules, which correspond to their requirements.
The African WTO members (excluding the least developed countries) agreed further on ceilings for tariffs on all agricultural products and certain industrial products. The problem is that countries will lose benefits of import duties on which they rely often heavily. Missing import duties can also lead to increasing exports in developed countries, which are able to offer their surplus of agricultural products to dumping prices and push the local goods away. Fact is that the developing countries must make sure that they participate actively in the WTO in order to strengthen their influence and to defend.
2.10 WTO AGREEMENT ON AGRICULTURE A BACKGROUND PAPER
Under Article 20 of the Agreement on Agriculture (AOA) which emerged from the Uruguay Round of Multilateral Trade Negotiations, the review of the Agreement is mandated one year before the end of the six-year implementation period of the Agreement i.e., 2000, with the objective of continuing the process of reform in the world trade in agriculture. The negotiations have commenced in March this year and in accordance with the time-table set for the first phase of negotiations, all WTO member nations are expected to submit their proposals by 31 December, 2000. In the process of preparations for evolving India's negotiating position on agriculture, the government has initiated regional consultations at various places, besides national level consultations with a view to generating greater awareness of the issues and to receive views and suggestions which would facilitate a consensus regarding India's position. In its continuing effort to promote transparency, the Ministry of Commerce & Industry (Department of Commerce) has already decided to put on its website a series of background papers on important WTO related issues. The second in the series of such background papers relates to the WTO Agreement on Agriculture and can be accessed at: http://commin.nic.in. You are invited to e-mail your comments and suggestions to: abhatia@ub.delhi.nic.in which would serve as useful inputs in evolving our stand in the ongoing negotiations under the WTO Agreement on Agriculture.
Preamble
After over 7 years of negotiations the Uruguay Round multilateral trade negotiations were concluded on December 15,1993 and were formally ratified in April 1994 at Marrakesh, Morocco. The WTO Agreement on Agriculture was one of the many agreements which were negotiated during the Uruguay Round. The implementation of the Agreement on Agriculture started with effect from January 1, 1995. As per the provisions of the Agreement, the developed countries would complete their reduction commitments within 6 years, i.e., by the year 2000, whereas the commitments of the developing countries would be completed within 10 years, i.e., by the year 2004. The least developed countries are not required to make any reductions. The products, which are included within the purview of this agreement are what are normally considered as part of agriculture except that it excludes fishery and forestry products as well as rubber, jut e, sisal, abaca and coir.
SAILENT FEATURES
The WTO Agreement on Agriculture contains provisions in 3 broad areas of agriculture and trade policy: market access, domestic support and export subsidies.
Market Access
This includes ratification, tariff reduction and access opportunities. Ratification means that all non-tariff barriers such as quotas, variable levies, minimum import prices, discretionary licensing, state trading measures, voluntary restraint agreements etc. need to be abolished and converted into an equivalent tariff. Ordinary tariffs including those resulting from their ratification are to be reduced by an average of 36% with minimum rate of reduction of 15% for each tariff item over a 6 year period. Developing countries are required to reduce tariffs by 24% in 10 years. Developing countries as were maintaining Quantitative Restrictions due to balance of payment problems were allowed to offer ceiling bindings instead of ratification. Special safeguard provision allows the imposition of additional duties when there are either import surges above a particular level or particularly low import prices as compared to 1986-88 levels. It has also been stipulated that minimum access equal to 3% of domestic consumption in 1986-88 will have to be established for the year 1995 rising to 5% at end of the implementation period.
Domestic support
For domestic support policies, subject to reduction commitments, the total support given in 1986-88, measured by the total Aggregate Measurement of Support (AMS) should be reduced by 20% in developed countries (13.3% in developing countries). Reduction commitments refer to total levels of support and not to individual commodities. Policies which amount to domestic support both under the product specific and non-product specific categories at less than 5% of the value of production for developed countries and less than 10% for developing countries are also excluded from any reduction commitments. Polices which have no or at most minimal trade distorting effects on production are excluded from any reduction commitments The list of exempted green box policies includes such policies which provide services or benefits to agriculture or the rural community, public stock holding for food security purposes, domestic food aid and certain de-coupled payments to producers including direct payments to production limiting programmers, provided certain conditions are met.
India does not provide any product specific support other than market price support. During the reference period (1986-88), India had market price support programmes for 22 products, out of which 19 are included in our list of commitments filed under GATT. The products are: rice, wheat, bajra, jawar, maize, barley, gram, groundnut, rapeseed, toria, cotton, soyabean, (yellow), soyabean (black), urad, moong, tur, tobacco, jute and sugarcane. The total product specific AMS was (-) Rs. 24,442 crores during the base period. The negative figure arises from the fact that during the base period, except for tobacco and sugarcane, international prices of all products was higher than domestic prices, and the product specific AMS is to be calculated by subtracting the domestic price from the international price and then multiplying the resultant figure by the quantity of production. Non-product specific subsidy is calculated by taking into account subsidies given for fertilizers, water, seeds, credit and electricity. During the reference period the total non- product specific AMS wasRs. 4581 crores. Taking both product specific andnon- product specific AMS into account, the total AMS was (-) Rs.19,869 crores i.e., about
(-) 18% of the value of total agricultural output.
Since our total AMS is negative and that too by a huge magnitude, the question of our undertaking reduction commitment did not arise. As such, we have not undertaken any commitment in our schedule filed under GATT. The calculations for the marketing year 1995-96 show the product specific AMS figure as (-) 38.47% and non-product specific AMS as 7.52% of the total value of production. We can further deduct from these calculations the domestic support extended to low income and resource poor farmers provided under Article 6 of the Agreement on Agriculture. This still keeps our aggregate AMS below the de minimis level of 10%. Special and Differential Treatment provisions are also available for developing country members. These include purchases for and sales from food security stocks at administered prices provided that the subsidy to producers is included in calculation of AMS. Developing countries are permitted untargeted subsidized food distribution to meet requirements of the urban and rural poor. Also excluded for developing countries are investment subsidies that are generally available to agriculture and agricultural input subsidies generally available to low income and resource poor farmers in these countries.
Export Subsidies
The Agreement contains provisions regarding member's commitment to reduce Export Subsidies. Developed countries are required to reduce their export subsidy expenditure by 36% and volume by 21% in 6 years, in equal installment (from 1986-1990 levels). For developing countries the percentage cuts are 24% and 14% respectively in equal annual installment over 10 years. The Agreement also specifies that for products not subject to export subsidy reduction commitments, no such subsidies can be granted in the future.
2.11 INDIA’S COMMITMENTS
As India was maintaining Quarantine Restrictions due to balance of payments reasons (which is a GATT consistent measure), it did not have to undertake any commitments in regard to market access. The only commitment India has undertaken is to bind its primary agricultural products at 100%; processed foods at 150% and edible oil at 300%. Of course, for some agricultural products like skimmed milk powder, maize, rice, spelt wheat, millets etc. which had been bound at zero or at low bound rates, negotiations under Article XXVIII of GATT were successfully completed in December, 1999 and the bound rates have been raised substantially.
Export Subsidies
In India, exporters of agricultural commodities do not get any direct subsidy. The only subsidies available to them are in the form of (a) exemption of export profit from income tax under section 80-HHC of the Income Tax Act and this is also not one of the listed subsidies as the entire income from Agriculture is exempt from Income Tax per se. (b) subsidies on cost of freight on export shipments of certain products like fruits, vegetables and floricultural products. We have, in fact, indicated in our schedule of commitments that India reserves the right to take recourse to subsidies (such as, cash compensatory support) during the implementation period.
• MANDATED NEGOTIATIONS
Article 20 of the Agreement on Agriculture (http://www.wto.org) mandates that negotiations for continuing the reform process in agriculture will be initiated one year before the end of the implementation period. As the implementation period for developed countries culminates at the end of the year 2000, the negotiations on the Agreement on Agriculture have begun this year.
These negotiations are to be conducted in special sessions of the WTO Committee on Agriculture at Geneva. The following are to be the broad parameters for carrying out negotiations:
a. Experience of member countries in implementation of reduction commitments till date.
b. The effects of reduction commitments on World Trade in Agriculture.
c. Non-trade concerns, special and differential treatment to developing country members and the objectives of establishing a fair and market oriented agricultural trading system are the other objectives of the negotiations.
d. What further commitments are necessary to achieve the long term objectives of the Agreement.
During extensive deliberations in the WTO Committee on Agriculture and in the General Council, member countries have agreed to broadly adhere to the mandate of Article 20 of the Agreement. Members have also agreed to submit their proposals by the end of this year.
• STATE OF PLAY
Through formal and informal discussions in the Committee on Agriculture, the WTO membership has been debating on various issues of concern to them. The demarcation in various groups of countries has now become clearer. The EU, certain Nordic countries like Norway and Japan are on the one side, wanting to continue their subsidy regimes in agriculture, whereas the Cairns group of countries who are naturally endowed agriculture producers, are totally opposed to the trade distorting subsidies and the protectionist regime being practiced by EU and Japan. The United States, though opposing EU and not completely with the Cairns group either, forms the third dimension. The developing countries are somewhere in the middle, not having decided whether or not to form a 4th dimension.
The Cairns group of countries, votaries of unrestricted trade, comprises a group of 18 major agricultural exporting countries. They have listed the elimination of export subsidies and domestic subsidies as goals of the ongoing agricultural negotiations at the World Trade Organisation. They have also called for better information and analysis of tariff rates, quota administration, export subsidies, domestic support programmes and market access as well as members position on bio-technology and Genetically Modified Organisms.
The U.S agenda for negotiations would be driven by further trade liberalization in the agricultural sector, which would benefit US interests. There is likely to be an emphasis on global tariff reduction on agricultural products, greater transparency and improved disciplines on state trading enterprises, proper implementation of tariff rate quotas and greater disciplines on bio-technology, as well as, further strengthening of the sanitary and phytosanitary agreement.
The European Union is more vulnerable to attack in the WTO on the issue of its distortion of markets through domestic subsidization of agriculture. In the context of further liberalization, EU would strongly defend its "Blue Box" policies. They feel that in case Blue Box is to be abolished, the WTO contracting parties will have to agree to change of the present rules in the Agreement on Agriculture. The EU would be pressing at the international level for improvements i n food safety and food quality standards as well as in supporting environmental and social sustainability. It is, thus, apparent that EU intends to maintain protection of its agricultural industry at the highest possible level while maximizing concessions to be gained in other country markets.
Japan highlights the importance of the multifunctional role of agriculture, food security and a fair balance between rights and duties of importing and exporting countries from the standpoint of a net importer of farm products. Briefly, it has been emphasized that Article 20 of the Agreement adequately reflects both the emphasis and context in which these negotiations should be entered upon. The most important aspect of the negotiations would be to address implementation problems up front, in the areas of market access, domestic support, export subsidy, notification requirements & technical assistance. The inadequate implementation of special & differential provisions in the above mentioned areas is a cause of particular concern to us. India has suggested that an in-depth analysis and assessment of the effect of the Uruguay Round on the trade of developing countries should be an essential pre-requisite of any negotiations.
We have also drawn attention to the peculiar agricultural scenario obtaining in large agrarian economies like India, where rural employment and production of sufficient food to meet the domestic requirements are of paramount importance. Thus, for addressing food security issues, a certain degree of autonomy and flexibility is required by developing countries in their domestic policies. These concerns have been articulated not with the intention of creating negotiating base but with the hope that the forthcoming negotiations would provide us adequate opportunity to pursue our legitimate trade and non- trade concerns.
2.13 LIKELY ISSUES FOR NEGOTIATIONS AND POSSIBLE INDIAN STAND
Market Access:
i) High agricultural tariffs and tariff peaks being applied by some WTO members are significant barriers to meaningful market access opportunities. We would have to very carefully articulate it as India will need to have a reasonable level of tariff protection for taking care of its food security and rural employment concerns.
ii) Tariff escalation is another factor, which discourages developing countries from diversifying from primary commodity production to processed value added agricultural products for export purposes.
iii) The operation of tariff rate quotas in a non-transparent and complex manner limits trade opportunities of new suppliers, particularly from developing countries. In this context, thus, guidelines on TRQ allocation and administration would be sought so as to enhance market access opportunities. It may be desirable to press for the elimination of tariff rate quota system itself.
iv) Certain aspects of sanitary and phytosanitary measures which limit market access particularly for exports of developing countries would also figure prominently in the forthcoming negotiations.
v) The special safeguard provisions, which are available to only a few Member countries, would also be coming up for review and India would press for its availability to all developing countries.
Domestic Support:
i) During the course of implementation of obligations/commitments, a number of member countries particularly from the developing world have experienced difficulty in calculating and notifying their aggregate measurement of support (AMS) on account of the following factors:-
a) Financial/resource constraints limit the capacity of most developing countries to provide support to their agricultural sector even up to the de minimis level.
b) Lack of clarity in the agreement with regard to the treatment of negative AMS and "excessive inflation", reduces the flexibility provided to developing countries during the Uruguay Round to address their domestic policy concerns.
Such implementation issues would require clarification during the current negotiations.
ii) The 'Green Box' should be revisited for a further tightening of criteria as it currently incorporates various provisions for support, many of which are not non-trade distorting. Moreover, as it is currently designed, it is not of much assistance to developing countries as it does not reflect their support programmers.
iii) The ‘Blue Box’ measures which refer to direct payments to farmers under production limiting programmed which are currently exempt from AMS reduction commitments, should either be totally dispensed with or alternatively should be subject to reduction commitments.
iv) Ways and means to incorporate increased flexibility in the level and use of de minimis support would also be discussed.
Export Subsidies:
i) Export subsidies are universally acknowledged to be the single most trade distortive impact in agriculture because of their potential of displacing developing country exports. There would be a strong demand for a complete outlawing of export subsidies. India would also press for it. However, as long as the export subsidies are permitted to be given by any country above the de minimis limit provided under the WTO's Subsidies and Countervailing Measures agreement, India should also have right to give export subsidies upto an appropriate level.
ii) Establishment of disciplines in the field of export credits, guarantees and deferred payments which have a negative effect on prices and competition in the world agricultural market, would be insisted and India would like it to be also included under the disciplines of Export Subsidies.
iii) On account of ambiguity in the existing language of the Agreement on Agriculture, certain countries are resorting to 'rolling over of export subsidies’. This practice would need to be suitably addressed as it amounts to negation of reduction commitments.
Non Trade Concerns:
The Non Trade Concerns (NTC’s) including food security and the need to protect the environment, alluded to in Article 20 of the Agreement on Agriculture would be taken into account during negotiations.
Food Security for India is not only availability of sufficient food but also adequate means to procure the same. Eminent agricultural economists and scientists like Dr. Swaminathan also believe that food security is economic access to food. Accordingly this has ramifications for employment and livelihood. For developing countries like India which are still grappling with the twin problems of poverty and unemployment, the production of food and economic access to it are primary objectives. As opposed to this certain developed countries are advocating multifunctional character of agriculture which essentially signifies that agriculture has functions other then providing food and fiber and also includes the protection of environment and maintaining the economic viability or rural areas. Viewed against the needs of developing countries concerns about the maintenance of rural landscape appear to be hollow. Any attempts to try and equate the two different scenarios and continue heavy subsidization of agriculture would be resisted. The concept of multificationality needs to the examined from the perspective of developing countries. Here, we would like to highlight the fact that the non-trade concerns of developed countries and those of developing countries differ not only in content but in priority also.
For countries like India, multifunctionality of agriculture is best mainfested in its ramifications in areas such as food security, employment and the elimination of poverty in rural areas. Moreover, these issues are neither emotive nor undefined but are practical and harsh realities which decision makers have to confront when addressing issues of agricultural policies. The need to provide employment opportunities in pre-dominantly rural agrarian areas is one of the main NTCs which India would like to see addressed.
2.13 Biotechnology:
Biotechnological inventions are increasingly affecting agricultural production and trade. New genetically engineered varieties of crops have increased productivity and are more pest resistant. This has important ramification for increasing productivity which is of central concern to almost all developing countries. To this extent, we would support carefully controlled use of biotechnology in agriculture. At the same time, there are environmental concerns relating to biotechnology. It is feared that Genetically Modified Organisms (GMOs), not having been fully tested for their effect on human health or the environment, should be treated as a class apart. There are also fears that new technologies like the so called 'terminator gene' could imbalance the ecosystem if it spreads beyond controlled production areas. A concrete country position needs to be evolved in this regard. Strengthening of the Special & Differential Treatment: Special & Differential Treatment accorded to developing countries under the Uruguay Round would be another area of importance to developing countries. These special provisions were designed to take into account the constraints faced by many developing countries in taking advantage of trading opportunities due to structural problems like inadequate infrastructure, lack of resources etc.
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CHAPTER – III
3.0 FOOD SECURITY-AN IMPORTANT NON-TRADE CONCERN
1. The objective of the Agreement on Agriculture (AOA) was to bring about discipline in one of the most distorted sectors of trade, by, inter alia, disciplining the unrestricted use of production and export subsidies, as well as by reducing import barriers, including non-tariff barriers. Thus, the AOA sought to limit the extent of support granted by individual countries and attempted to ensure that countries adopt a more liberal policy as far as agricultural trade was concerned. At the same time, as indicated in the Preamble, the AOA recognized non-trade concerns (NTCs) of countries. These NTCs amongst others include food security and the need to protect the environment.
2. However, this fine balance between trade and non-trade concerns, as mandated in the Preamble, does not appear to have been fully reflected in the provisions of the Agreement and consequently in its implementation. The major thrust of the Agreement appears to be based on the hypothesis that liberalisation is the panacea of all ills in the agricultural sector. While this may be tenable from a conventional economic view point, such a reasoning does not take into account the problems faced by a number of developing countries, which because of certain underlying constraints, have to necessarily take into account non trade concerns such as food security, while formulating their domestic policies. This is particularly true of developing countries, where a significant percentage of the population is not only dependent on the agricultural sector for its livelihood, but is also surviving just around the ‘poverty line’. In such countries a purely market oriented approach may not be appropriate. Instead, for some countries it may be necessary to adopt, what we would like to term a ‘market plus approach’, in which non trade concerns such as the maintenance of livelihood of the agrarian peasantry and the production of sufficient food to meet domestic needs are taken into consideration. We, therefore, feel that at this juncture it is important to closely examine this aspect of the AOA, so as to ensure that the reform process in the agriculture sector takes into consideration the food security and other non trade concerns of countries like India.
3. Ensuring food security, that is the access of the population to sufficient food to meet its nutritional requirements is a basic objective of governmental policies in agrarian developing countries. Hence, food security issues cover not only issues related to the availability and stability of food supplies but also to issues of access to this supply i.e. related to the resources that may be needed to procure the required quantity of food. It is therefore clear that issues related to food security are sensitive issues and hence countries in which a large percentage of population is dependent on this sector, would like to have a certain degree of autonomy and flexibility in determining their domestic agricultural policies. These policies would naturally be geared towards improving productivity, enhancing income levels, reducing vulnerability to market fluctuations, ensuring stability of prices etc. Inter alia, this would be achieved through reliability of production and supplies, so that seasonal variations in access to food are minimal. It is for this reason that national food production policies have been central to domestic agricultural policies not just for developing countries, but also for the developed countries who are net importers of food, as has been brought out in the papers submitted by Norway and Japan. It is, therefore, clear that in this sense food security is a legitimate national concern and has been so recognized by the FAO (Food & Agriculture Organization). In fact, during the World Food Summit of 1996 "the importance for food security of sustainable agriculture, fisheries, forestry and rural development in low and high potential areas" was explicitly recognized. This recognition of the importance of food security even for low potential areas clearly underlines a developmental perspective which goes beyond mere trade concerns, and is, therefore, germane to the outlook and interest of developing countries.
4. Let us, therefore, examine both the external and internal dimensions of this problem particularly from the perspective of developing countries.
5. Countries which argue and support rapid liberalization of the agricultural sector contend that global food sufficiency would in a way ensure food security since countries could then produce what they are most competent and efficient in, while importing the rest of their food requirements. Such an argument presupposes that all countries would at all times have sufficient foreign exchange to procure their food requirements internationally. This assumption is obviously not true since not all developing countries would be in a position to import food grains, even if these were available at competitive prices, due to their limited foreign exchange reserves. Moreover, these countries often face cross sect oral pressures on their available funds, which further limits their capacity to procure internationally. This problem is further compounded in case there are unforeseen variations in the international prices.
6. Similarly, there are various internal constraints which if not appropriately addressed, would severely limit the capacity of developing countries to increase domestic production, to at least a certain minimum percentage of their requirement. Firstly, holdings are small and the majority of farmers belong to the small and marginal category. This limits any attempts to introduce mechanized farming and also constrains the adoption of new technologies unless accompanied by large scale extension programmed. Consequently, the productivity is low and the total production varies substantially, since a large percentage of the agricultural sector continues to be at the mercy of the vagaries of nature. Further, only a small percentage of what is produced finds itself in the market, the rest being used by the small and marginal farmers for sustenance or for simple barter. At the same time, there is increasing pressure on land from non agricultural users, both because of the rising level of urbanization as also because of the geographic spread of industries. If this limitation on the availability of agricultural land is viewed in the context of the growth in population, which most of the developing countries invariably face, it would be clear that the only way in which agricultural growth can be sustained and the objective of food security attained, would be through increased governmental support in the use of inputs, particularly in terms of irrigation, electricity, fertilizers, pesticides, technical know-how, high yielding varieties, infrastructural development, market support etc.
7. It is, therefore, clear that there are significant external and internal ramifications of attaining the objectives of food security. While it may not be possible to immediately ensure that developing countries are able to produce at least a certain minimum percentage of their annual food requirement, this is a goal which has to be pursued, particularly in light of the constraints that developing countries would face in adopting an external solution to this problem. Recognizing the percentage of small farmers in the agricultural sector of most developing countries, it is clear that a major part of the financial burden of increased inputs would have to be met through governmental subsidies. It would need to be recognized that the small farmer would not be able to meet his principal responsibility without adequate support from government. Public intervention would therefore be necessary in order to achieve these national goals.
8. Finally, it needs to be said that agricultural self reliance forms a vital underpinning for the growth of the GDP of agrarian developing economies since good agricultural production provides purchasing power to a large majority of a population, which in turn spurts industrial growth. Self-sufficiency in food production has therefore a specific developmental perspective as opposed to a purely commercial perspective. Hence, it is our view that developing countries need to be provided the requisite flexibility within the AOA to pursue their legitimate non trade concerns. More specifically, developing countries need to be allowed to provide domestic support in the agricultural sector to meet the challenges of food security and to be able to preserve the viability of rural employment, as different from the trade distortive support and subsidies presently permitted by the Agreement. It is therefore important that a differentiation is made between such domestic support measures which are presently being used to carve out a niche in the international trade and between those measures which would allow developing countries to alleviate rural poverty.
9. India is anxious that the AIE process must therefore examine the manner in which developing countries can be provided additional flexibilities by appropriate adjustments to the provisions of the AOA, in order to enable them to pursue their legitimate non- trade concerns. India believes that a focused discussion on the subject will contribute to increased awareness to the non-trade concerns of countries like India, such as food security and rural employment, and thus enable the WTO Membership to deal with the subject of continuation of the reform process in the agricultural sector with sensitivity to these concerns.
3.1 ISSUES OF INTEREST TO DEVELOPING COUNTRIES
India welcomes the papers submitted by Pakistan, Peru and the Dominican Republic (AIE/6) and the paper submitted by Cuba (AIE/12) on the issues of interest to developing countries. We would also like to thank the Secretariat for their paper on the special and differential (S&D) treatment provisions relating to the AOA (AIE/S6) and the studies on the implementation and impact of the AOA on developing countries (AIE/S7). These papers provide extremely useful factual data in the context of the issues which have been highlighted by delegations regarding the S&D provisions for developing countries.
1. India would like to reiterate the importance that it attaches to the special and differential treatment provisions as provided for in the AOA. Since we are in a process, which we hope will help to clarify some of the issues which are likely to be deliberated upon during the new round of negotiations, it would not be out of context to recapitulate some of the concerns which developing countries had during the UR and which were sought to be allayed by the S&D provisions.
2. As is well known a large number of developing countries are predominantly agrarian countries where a very large percentage of the population is dependent on agriculture for its livelihood. While in the initial years the main concern of these Members was to ensure food sufficiency, this concern, once fulfilled, and gradually evolved into a concern of finding markets for their agricultural surpluses, so as to ensure the continued provision of agricultural livelihood to this large population. During the UR these concerns got manifested into two broad areas. The first of these broad provisions related to domestic support which allowed developing countries to provide assistance, whether direct or indirect, to encourage agricultural production as an integral part of the overall objective of rural development. The second area related to the market access, where it was felt that there was a need to improve access for developing country Members by improving both the opportunities and terms of access for agricultural products of interest to these Members.
3. These two very broad aspects were sought to be translated in to specific provisions for the developing countries. As highlighted in the Secretariat paper AIE/S6 there are five broad areas where special and differential provisions have been provided for in the AOA. These include the following, which in our view merit detailed deliberations:
i. market access;
ii. food security, with specific reference to net food importing countries:
iii. domestic support commitment;
iv. export subsidy commitment; and
v. notification requirements and technical assistance.
1. All these five areas need to be considered in detail during the course of this informal process of analysis and information exchange since they have important ramifications for developing countries. For example in the context of the improved market access which the Agreement had sought to provide to developing countries, India would like to draw attention to the first special and differential treatment provision highlighted in the Secretariat doc. No. AIE/S6. The preamble of the Agreement specifically mandates developed countries to provide greater opportunity and market access to the agricultural products of interest to developing countries. Unfortunately, however, the status of implementation as far as this provision is concerned is not totally clear from the information provided in the Secretariat paper. Members have already highlighted some of the specific areas where we need additional information to correctly evaluate the impact of the Uruguay Round. We would like to highlight one specific area where we need certain clarifications. On page 2 of the Secretariat paper AIE/S6 it has been indicated that there has been a "greater-than-average reduction in tariffs on products of interest to developing countries". The factual situation would perhaps have been clearer if figures relating to specific products had been provided. We no doubt agree that compiling data for all products may not be possible but it would be helpful if this committee could analyse the post-UR status for at least some products of interest to developing countries. In this context, we would like to draw attention to a World Bank Policy Research Working Paper titled "Agricultural Trade Liberalization in the UR", in which it has been indicated that the post-UR base tariffs of a number of sensitive commodities in many industrialized countries are higher than the actual tariff equivalents of all border measures which existed in 1986-88. For instance, for rice, which is of particular interest to India, the World Bank had calculated that the tariff differential for a particular group of countries had increased by as much as 207%. It would therefore be helpful if the Secretariat could perhaps provide additional data as far as some specific products are concerned, since this would help us to better analyze the impact of the AOA on developing countries.
2. Similarly issues of food security also need to be adequately addressed. The preamble to the Agreement specifically highlights the need for Members to take into account non trade concerns such as food security. While this term has been extensively used in the past, we are not entirely sure whether the objectives relating to food security which have so clearly been spelt out in the preamble, have been met. In this context it may be mentioned that it was in the Bali Declaration of the Non-Aligned Movement that an attempt was made, perhaps for the first time, to define food security. The Declaration recognized that in spite of substantial increase in the world’s food output, the number of people suffering from hunger and malnutrition had increased in many developing countries. India therefore feels that it is extremely important that one of the goals of agricultural trade liberalization remains, the achievement of the objective of food security. It would be perhaps too simplistic to assume that agricultural liberalization would by itself be able to overcome the problem of food security. Free trade in agriculture is not without its long term social and economic ramifications. India would therefore like to suggest that it would help to clarify Member’s perception, if during this process of analysis and exchange of information the Committee consider certain specific examples where agricultural liberalization may have had some undesirable effects, specially from the point of food security. This would help identify those areas, policies and practices which may have had such an effect and which the impending round of negotiations would provide an opportunity to rectify.
3. Issues relating to domestic support commitments, export subsidies, notification requirements and technical assistance also need to be similarly examined. A good way would be to encourage developing countries to submit papers on these issues. However, it may be necessary for the Secretariat to provide technical assistance to these delegations so that they can appropriately organize their country experiences in the form of submission papers.
4. In this context we also support the suggestion made earlier, that organizations like FAO, UNCTAD, WORLD BANK, etc. which have done some excellent work in this area are invited to make general contributions on issues of interest to developing countries, particularly regarding the implementation and impact of the Agreement on Agriculture. These contributions could be in the form of papers which the Secretariat could circulate to Members. The relevant organizations could then be invited to a special meeting of the AIE process when their papers can be taken up for consideration.
5. We have highlighted only some of the issues of interest to developing countries. As evident there are a number of other critical areas and issues which need to be addressed during the course of the Analysis and Information Exchange process. Some of these we have listed in Para 3 above. Others have been identified in the papers submitted by Pakistan, Peru, Dominican Republic and Cuba. This list is obviously not exhaustive. We would therefore suggest that as the Committee deliberates on the special and differential provisions, an evolving check-list of issues of interest to developing countries is prepared. This would help focus further work on special and differential treatment in the context of market access, food security, domestic support, notification requirements, special safeguards and technical assistance.
3.2 The Adventure of WTO
The recognition of agriculture as a rule-bound enterprise of investment and profit making became obvious with its inclusion in the intergovernmental negotiations for the General Agreement on Tariffs and Trade (GATT) for the first time in the Uruguay Round (1986-1994). This round led to the establishment of the World Trade Organization (WTO) in January 1995. Now, the WTO has at least half a dozen intergovernmental agreements that directly affect agriculture. These are, Agreements on Agriculture (AoA), Applications of Sanitary and Phytosanitary Measures (SPS), Technical Barriers to Trade (TBT), Anti- Dumping, Subsidies and Countervailing Measures, Safeguards, and Trade Related Aspects of Intellectual Property Rights (TRIPs). An understanding of the implications and the application of these agreements, particularly the TRIPs, has become more important than ever before at every stage of planning, research, up scaling and commercialization of agricultural technologies. The TRIPs Agreement is covered in an elaborate docume nt—comprising 73 articles in 7 parts, namely, (i) General provisions and basic principles, (ii) Standards concerning availability, scope, and use of IPRs (iii) Enforcement of IPRs, (iv) Acquisition and maintenance of IPRs and related inter partes procedures, (v) Dispute prevention and settlement, (vi) Transitional arrangements, and (vii) Institutional arrangements. There are seven forms of intellectual property rights recognized in the TRIPs Agreement. These include, Copyright and related rights, Trademarks, Geographical Indications, Industrial Designs, Patents, Layout-Designs (topographies) of integrated circuits, and protection of undisclosed information. This agreement also covers provisions related to control of anti-competitive practices in contractual licenses, although, it does not directly relate to IPR. In days to come, when application of various forms of IPR in different areas of agriculture is put to practice, we may face serious problems unless timely remedial measures are taken, awareness is brought out and also due emphasis is given on IPR literacy, higher education and capacity building in the country. Following establishment of the international institutional mechanisms, such as, the Convention on Biological Diversity (CBD) and the WTO, and further, signing of International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the growing importance and the global scope of IPR in agriculture are well realized and recognized. The IPR, after long debate, is recognized as an asset and means of rewarding and harvesting the fruit of agricultural research and development. Recognition of intellectual property rights provides an effective means of protecting and rewarding innovators. This acts as a catalyst in technological and economic development. The essence of regulation of IPR by law is to balance private and public interests. At the same time, equitable benefit sharing is, although, agreed upon under the CBD, is yet to be realized in effective terms.
3.3 Significance of Trade Secrets in agriculture
Trade secrets in the agriculture economy have increased greatly in the past few years, for a number of reasons. There are mainly two reasons for that, one among them is that other forms of intellectual property like Patent, Trademark and Copyright have an element of uncertainty as compared to Trade Secret. Secondly, trade secrets have gained importance because, in many fields, the technology is changing so rapidly that it has surpassed the existing laws intended to encourage and protect inventions and innovations. Another significant factor which has enhanced the value of trade secrets is the relative ease of creating and controlling trade secret rights. There are no bureaucratic delays and no multiyear waits for government grants, such as those for patents. Trade secret rights, in contrast, can be established by the explicit conduct or agreement of the interested parties. A trade secret right starts upon the creation of the idea in some concrete form, and continues as long as secrecy is maintained. Protection of information such as ideas or information which does not qualify to be protected as intellectual property within the legal framework Intellectual Property Laws of the land can be protected by Trade Secrets. They also have the advantage of being lasting forever, again, as long as secrecy is maintained. Of course, trade secrets have negative aspects. They are a volatile form of property, and they terminate when secrecy is lost. Also, they require constant vigilance to protect them. Nevertheless, trade secrets play a major role in protecting innovations and establishing rights to use new technology. It is thus important for the intellectual property practitioner to be alert to the intricacies of this large body of trade secret law.
Confidential Information vs Trade secret
A Trade Secret is some information or “secret” that is important to the business and is not known to the public. It is a term commonly used to cover information that has commercial value. The law on “trade secrets” is really about the protection of Confidential Information. Though there is no clear distinction between the both. At times both the concepts are so intermingled and overlapped that it’s become difficult to draw line. The terms “trade secrets” and “confidential information” have been used somewhat interchangeably by the courts. “Trade secrets” generally refers to information relating to more technical matters such as secret processes or formulas; and “confidential information” relates to non-technical matters such as business plans or pricing information. Although many concepts and ideas may be public knowledge, courts have upheld confidential/trade secret information protection for (i) specific ways to implement ideas and, (ii) combinations of known concepts and ideas. Novelty and invention are not required.
Though case law does not always define clearly whether trade secrets are synonymous with confidential information or proprietary information. Nevertheless, the case law does suggest that trade secrets and confidential information are essentially identical concepts.” Agreement India is under an obligation to bring its intellectual property laws in conformity with international standards. India has achieved this to a large extent by enacting new and amending existing legislations on intellectual property laws. However, unlike the US and other developed countries India has no legislation dealing with trade secrets.
In India protection of trade secrets is Common Law based. However, section 27 of the Indian Contract Act provides some sort of limited remedy, it bars any person from disclosing any information which he acquires as a result of a contract. There are scores of reasons for the absence of any statute dealing with trade secrets. India has since its independence followed a socialist pattern because of which the Indian legal system has always strived for social benefit and public rights as a result of which private rights like intellectual property rights have not been given any importance. Another reason for absence of any trade secret laws is the dependence of Indian economy on agriculture. Also, with the absence of big private corporate houses in India until recently there has hardly been any pressure on the government for granting statutory protection to trade secrets. Protection of trade secrets is a very important and one of the most challenging tasks for the Indian government as this will enhance the foreign investment in India giving a boost to the Indian economy. Foreign investors have to be assured of the protection of their trade secrets, so that they can do business with our country. A proper policy for trade secret protection will further enhance the security in our own industry. Almost all the countries in the world have a policy for the protection of trade secrets and India also being a signatory to the TRIPS is under an obligation to amend its laws or create a new law in order to safeguard the trade secrets of various businesses. So a proper policy for the protection of trade secrets in India is the need of the hour in order to provide a sense of security among the foreign investors and the local businessmen regarding their trade secrets which will further boost the Indian economy.
As mentioned above, in India, no substantive authoritative text or case laws are available to determine the nature or ambit of trade secrets. But the Indian courts have tried putting the trade secrets of various businesses under the purview of various other legislations in order to protect them and also they have tried to define what a trade secret is in various cases, Trade Secret law has gained importance in India only recently with the intensification of competition. Coca cola’s formula has been protected for over a century under Trade Secret law.
3.5 PROTECTION OF CONFIDENTIAL INFORMATION/TRADE SECRET IN THE HAND OF EMPLOYEES
As businesses are growing out of their parochial moulds and going global, effective trade secret protection is becoming a necessity. Though there is no enactment in India that affords protection to trade secret, businesses can use the tools mentioned below to safeguard these trade secrets:
Non-disclosure Agreements:
Sound and concise company policies and non-disclosure agreements with the employees protecting confidential information and trade secrets are recommended so as to provide contractual remedy in addition to the one under the common law. Such agreements should define “confidential information” and the exceptions to confidentiality. Agreements should have clauses negating a grant of an implied license, restrictions on disclosure, use and copy; restriction on use of confidential information upon termination of the employment, return of information upon termination and right to withhold salary and emoluments till such return.
Non-compete clauses, depending upon their applicability in the Indian context, read with the confidentiality clauses would afford an organization added protection with respect to its confidential information. Such provisions must have a clear purpose, which is to restrict the use of confidential information and trade secrets obtained during employment and ensure that employees do not compete unfairly. However, non-compete provisions would need to be reasonable, and the Indian courts may treat a tough non-compete provision as unenforceable. In order to ensure that the rights of third parties are not violated, the non-disclosure/employment agreement should clearly impose an obligation on the employee not to integrate into the organization’s data or intellectual property, any confidential information of a third party. Employees should be required to indemnify the organization in case of violation of this clause. If the organization has not executed such agreements at the time of employment, subsequently executed agreements should expressly cover the confidential information obtained by the employee from the date of his employment.
Internal Processes:
Strong internal controls and processes to protect confidential information should be in place. Employees should be educated to identify information that is confidential or in the nature of a trade secret, to enable them to make an informed decision. They should have a clear understanding of their responsibilities to protect confidential matter and treat this as an on-going process that is integral to their work. Data that is confidential should be clearly indicated as such in all communications. Appropriate security procedures must be established and followed by the company and access to specific sensitive areas of workplace restricted or limited to certain senior employees only. Third-party interaction and disclosures should be channeled only through specified personnel. Wherever feasible, confidential information should only be shared with those employees who have a legitimate need to know such information, thus enabling the employees to perform the assigned tasks.
3.6 Global and National Scope of IPR relevant agricultue
Broadly, protection of all forms of IPR may be relevant in agriculture but its application has to be limited to the relevant domestic Acts in vogue. Hybrids in plants and animals may be protected de facto by not disclosing the parents, whereas protection for plant varieties may be availed by a sui generis system. The provision for Plant Variety Protection (PVP) made under the TRIPs Article 27.3(b), allows countries to provide such protection either through patent, or an effective sui generis PVP system or any combination of the two. Patents, in India, are so far available to new processes but not to all products per se. In agriculture, patents may be obtained for processes related to agrochemicals, growth promoters and regulators, vaccines, drugs, hides and wool, dairy technology, food technology, fuel and biogas production, bioreactors, standardization of various laboratory protocols, environment management, etc.
Copyrights and related rights, on the other hand, may be registered for databases, bioinformatics, genes and gene sequences, amino acid sequences, antibodies, etc. Application of industrial designs and the topographies of integrated circuits would be relevant, particularly in agricultural engineering. Nevertheless, in the days to come, IPR is likely to dominate the agricultural scenario irrespective of whether the technology in question is conventional or modern—biotechnology or information technology. Countries are required to enact/amend their domestic laws in accordance with the TRIPs Agreement and the between-country disputes have to be resolved at the WTO platform, according to its dispute settlement procedures. In this context, it is important to have in place well enacted laws corresponding to the different forms of IPR that not only keep in view the basic needs of the country but are also capable of tackling complexities, which might arise at the international level. In India, the Patents Act, 1970, constituted the basic Principal Act on the subject.
This Act hardly included innovations in agriculture under the patentable subject matter. In particular, it excluded methods of agriculture and horticulture as well as all innovations in the areas of treatment and protection of plants and animals from pestilence or those aimed at increasing their productivity and value of their produce. This broad exclusion had historical impact and implications in respect of IPR protection in agriculture in the country. India is bound by all the provisions of TRIPs Agreement, which oblige the country to enact/amend relevant domestic laws. Further, with such shifts in legal provisions and also national policies, increased private participation in agricultural R&D and far more public private relationships, including both competition and cooperation in relevant areas, are imminent. Several legislative and institutional adjustments are being made in the country to gear up and face the challenges of globalization. These include enactment of new legislations on Protection of Plant Varieties and Farmers’ Rights Act, 2001 and Geographical Indications of Goods (Registration and Protection) Act, 1999, and amendment of Patents Act, 1970 in 1999 and 2002. The Biological Diversity Bill, 2000 is in the process of enactment and revision of the Seeds Act, 1966, is also receiving attention. The need to provide for protection in the areas specific to farm animal sector is also being realized. Effective implementation of IPR related legislations in place and those in the offing is expected to have significant impact on the course of agricultural R&D in the country. Therefore, it is considered important to identify and develop various national policy options for addressing the emerging areas of IPR in agriculture, including the access to various protected technologies to the Indian farmers, entrepreneurs and users. It is high time that a critical analysis of the system is undertaken for its strengths, weaknesses, opportunities and threats (SWOT), to convert threats into opportunities and mitigate weaknesses through
timely action.
3.7 Plant innovation: past and present
Until the late 1800s, crop varieties were developed by trial and error selection by farmers, with seed for the next crop saved from the current crop. In the last century or so,
farming and plant breeding began to separate in many industrialized countries. With the development of large scale commercial farming, professional breeders increasingly focused on producing uniform varieties more suit- ed to mechanized large-scale agriculture, and designed to give higher yields under specific conditions. These commercially-bred varieties generally require farmers to buy seed developed by others. For much of 20th century, agricultural research, including professional plant breed- ing, was financed by the public purse. In last few decades there has been an increased switch to privately funded research and development.
In many parts of the world, where small-scale farming still occupies a large proportion of the population, farm-based seed development continues to play an important role. Many so-called ‘traditional’ or small-scale farmers remain highly innovative. Farmers’ varieties or ‘landraces’ are usually selected for a range of traits and are not genetically uniform, which helps ensure some crops will grow even in the face of unexpected, difficult or varying conditions. Landraces also provide a diversity of genetic materials from which new varieties can be bred. Yet yields from landraces are often not as good as from more recent, improved varieties.
3.8 The rationale for plant variety protection
Plant variety protection (PVP) is one type of intellectual property (IP) right, alongside theirs like patents, copy right and trademarks. PVP is specifically designed for plant varieties, and grants breeders exclusive rights on propagating material (such as seeds) of new plant varieties that they have developed. PVP is intended as an incentive for research and development by enabling breeders to recoup the costs of researching and develop ing improvements to pre-existing biological resources. In the absence of such exclusive rights, third parties could freely use breeders’ innovations, because plant genetic material is naturally self-replicating, and so easily susceptible to unauthorized exploitation. As discussed in section 6, PVP differs from patents, for instance by allowing more expansive public interest flexibilities, such as allowing access to PVP-protected ma trials for research, for further breeding, and for and for non-commercial use by farmers. In addition to IP rights, breeders also use technology or contract law to protect their knowledge and ensure that they can derive revenue from plant varieties which they have developed. Contract law is commonly applied through the use of licenses that purchasers must agree to and which may be more restrictive than PVP rules.
An ideal plant variety IP regime needs to provide incentives and attract research investment in at least two directions. First, and most importantly, it should support breeding targeted to the nutritional and other needs of the whole populace without unduly disrupting existing traditions, farming systems and diversity. Secondly, such a system should support the development of non-food, premium or other food crops that can be sold to generate wealth that to the greatest extent possible is captured at local and national levels. In any event, the PVP regime should be for the benefit of society.
3.9 The purpose of an international system of plant variety protection
International protection of plant varieties facilitates accuss to new varieties created in other States: when breeders are assured that their rights will be protected in other countries, they will be more willing to make their new varieties available there.2 The International Union for the Protection of New Varieties of Plants (UPOV) is the only international PVP system.
3.9.1 Plant breeding, PVP, and developing countries
UPOV figures show a steady global growth in applications, alongside a proportionate overall increase in foreign applications.3 There is clear evidence of developed country-based seed companies becoming more interested in developing country markets, sometimes taking over domestic firms (as in Argentina), or using foreign territories for producing their plants for exportation. Often such plants are ornamentals or out-of-season vegetables for the European and North American markets. For example, out of 482 PVP applications in Kenya from 1997 to 2003, 247 were for roses, all of which were foreign bred. The empirical evidence leads us to expect that the vast majority of PVP applications in developing countries will come from foreigners, at least in the early years. Other issues relating to developing countries are discussed in sections 3 and 7 of this study.
3.9.2 The significance of plant variety protection
PVP has important implications for crop improvement. Its significance also goes far beyond this. PVP relates to agricultural policy, food security, rural development, economic development, biodiversity, genetic resource conservation, and human rights.
Today these relationships deserve particular attention: the world faces stark choices about how to ensure food security as the world’s population grows and as cultivation patterns change due to climate change. Key questions include how to increase productivity to ensure long-term food security. Long-term food security will require higher-yielding seeds, as well as seeds that are resilient and adaptable to changing conditions. This will also require production systems that do not deplete resources - such as soil, forest areas, water or fuel - that are already under pressure or whose price might increase so as to threaten the viability of their use for agriculture. A basis for sustainable food supplies and resilience in the face of unexpected or sudden changes will require diversity of knowledge systems, of genetic stock and of food systems. PVP may stimulate private investment in research where an industry already exists, or in varieties that have a high market value. However, there is a lack of evidence that PVP alone will stimulate the establishment of private sector plant breeding enterprises,5 or that the presence of a PVP system will encourage the development of new varieties where no market exists.
3.9.3 UPOV, its critics, and the scope of this study
These issues have given rise to controversy and vivid discussion between proponents and critics of UPOV-style PVP systems. The Union for the Protection of New Varieties of Plants (UPOV)’s stated 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’.7 In the UPOV community the benefits of PVP and UPOV are cited for encouraging the development of improved varieties, and giving farmers in all UPOV member countries ac- cess to new, improved varieties for farmers. This is said to result in increased levels of agricultural produce after a country joins UPOV, and also to increase the diversity of seeds available worldwide. In the words of a Dutch delegate to UPOV, ‘the Dutch seed industry exports sustainability’ in the form of higher-yielding or more resilient varieties, or varieties that require less water for their cultivation.
Critics contend that the UPOV system is unsuited to the agricultural characteristics of developing countries, but that UPOV is suited for and promotes an industrial-style, monoculture-based farming system and favors the commercial seed industry (including by furthering agric cultural systems that require chemical inputs) over small farmers, diversity and traditional knowledge. Many point to the increasing concentration in the seed industry that has occurred over the last two decades, saying
that this concentration, as well as intellectual property protection for seeds, is inconsistent with human rights. Critics add that yield improvements since UPOV came
into force owe more to scientific developments than intellectual property protection, and that this has occurred simultaneously with a massive loss of biological diversity. UPOV detractors add that the system does not recognize the incremental contribution of farmers over prior decades to developing new crops, nor that crop development and improvement has happened since farming began, even in the absence of intellectual property protection. Much has been written on this debate. The present study does not propose to address the question of whether PVP or a particular farming system is good or bad for food security and biological diversity. Rather, this study focuses on the UPOV system itself. The study seeks to assess the extent to which the UPOV system provides adequate space for the consideration of how the Convention can best be applied to help the world to meet policy objectives in the areas of food security and biological diversity.
3.9.4 . Origins of the UPOV Convention
The Convention was largely conceived and designed by and for European commercial breeding interests, and balanced these interests with those of European farmers. Agriculture ministries were also involved. In its early years the Convention applied exclusively to European countries. The same European breeding interests continue to be intimately involved in the operations of the Convention and of the Union today, and have also played important roles in encouraging more countries from all regions to join UPOV. Many developing countries are now parties to UPOV: some two dozen have joined since 1995, and many more have initiated proceedings to join. Before the 1960s, IP protection of plant varieties was uncommon. With very few national regimes, European breeder associations were instrumental in UPOV’s existence. Two organization were deeply involved in the creation of the UPOV Convention: (i) the International Association for the Protection of Intellectual Property (AIPPI), which largely comprises lawyers with a preindustrial stance; and (ii) the International Association of Plant Breeders (ASSINSEL). Both took the strategic view that the lack of IP norms specifically for plants needed to be resolved internationally.
In 1956, ASSINSEL’s members called for a conference to consider the possibility of developing a new international instrument for protecting plant varieties, requesting the French government to organize it. That conference established the basic principles of plant variety protection as later incorporated into the UPOV Convention. Only European governments were invited, mainly representatives of agriculture ministries.
A follow-up conference - in which 12 European countries participated - took place in November 1961. which subsequently be-came the International Bureau of the World Intellectual Property Organization (WIPO), and the Food and Agriculture Organization of the United Nations (FAO), attended as observers. AIPPI and several industry organization participated: ASSINSEL, the Comminute international des obtenteurs de plants ornamentals de reproduction asexual (CIOPORA, the International Community of Breeders of Asexually Reproduced Ornamental and Fruit Varieties), and the Federation International du commercedes Sameness (FIS). All of these were and remain head-quartered in Europe.
The International Convention for the Protection of New Varieties of Plants was adopted in December 1961, entering into force in 1968 once it had been ratified by three countries, which then formed the Union. It took seven years for the Convention to enter into force because few countries already had PVP systems, and ratification requires a national PVP system to be in place. UPOV was revised in 1972, 1978 and 1991. The 1991 revision, outlined in section 3, entered into force in 1998.
3.9.5 UPOV and the ‘international regime complex’ on plant intellectual property
UPOV is legally separate from, but has a close relationship with WIPO, which houses the Secretariat (the UPOV Office) in its Geneva headquarters, as discussed in more detail in Section 5. The World Trade Organization (WTO) is also linked, particularly to the increase in UPOV membership. The WTO Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS, Article 27.3(b)) requires Member States to provide intellectual property protection for plant varieties, but allows governments quite a lot of choice in how they put this requirement into effect.20 As discussed in more detail in section 4 below, TRIPS does not mention the UPOV Convention, thus allowing for possibilities other than joining UPOV. Accordingly, WTO Members may extend patent protection to cover plant varieties or may choose, as European countries have, to keep conventional plant breeding out of the patent system. In the latter case, though, TRIPS requires a specific (‘sui generis’) IP regime for plant varieties.
UPOV is one such IP regime other international agreements also cover subject areas affected by UPOV. Prime amongst these is the FAO International Treaty on Plant Genetic Resources for Food and Agriculture, which indicates measures governments can take to protect Farmers’ Rights, recognizing the ‘enormous contribution’ that farmers make to the conservation and development of plant genetic resources. For ex-ample the Treaty encourages its parties to take measures to ‘equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture’. The Treaty also has provisions on sustainable use of plant genetic resources, by which parties commit to measures such as agricultural policies that promote the ‘development and maintenance of diverse farming systems that enhance the sustainable use of agricultural biological diversity and other natural resources’, and plant breeding efforts which, with the participation of farmers, ‘strengthen the capacity to develop varieties particularly adapted to social, economic and ecological conditions’.
The Convention on Biological Diversity (CBD) is another relevant agreement. The CBD requires inter alia that access to genetic resources be allowed on the basis of terms agreed between the user and authorities representing the provider country and that benefits arising from their use be shared fairly and equitably. Similar requirements apply to the knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles. Politics and power Neither UPOV nor TRIPS preclude non-UPOV members adopting non-UPOV PVP regimes. But while some non UPOV sui generis systems have been established in recent years (e.g. in India and Thailand) developing countries are more often opting for UPOV membership than exploring other approaches. In the last decade, developing countries have often agreed to apply for UPOV membership - or adopt UPOV 1991 compatible legislation through their trade or investment agreements with the United States, the European Union, Japan or the European Free Trade Association. In addition, as discussed in sections 3 and 4, technical assistance programmed can result in PVP rules that may comply with UPOV, but are not necessarily adapted to local conditions or to the needs of all stakeholders.
3.9.6 Key provisions of the UPOV Convention
The Convention’s provisions are extremely detailed and specific. To be eligible for protection, plant varieties must be novel, distinct, uniform and stable (the ‘DUS criteria’). Under UPOV, a variety is considered novel if it has not been sold or otherwise disposed of within a specific time-frame. In other words, UPOV defines novelty in relation to commercialization and not by the fact that the variety did not previously exist. To be distinct, the variety must be distinguishable by one or more characteristics from any other variety whose existence is a matter of common knowledge. Protection under UPOV does not require that a variety be completely uniform, but rather that it be sufficiently uniform in its relevant characteristics to be identified as a particular variety. To be considered stable, the variety must remain true to its description after repeated reproduction or propagation. The Convention specifies that granting PVP shall not be subject to any further conditions, provided that the applicant complies with all the formalities and pays the required fees. Most countries charge a fee for DUS testing, and well as various other fees, including an annual fee for plant variety protection.
PVP does not require the breeder to disclose the source of the materials used to breed the new variety (whereas patents usually have a disclosure requirement, which allows others to read the patent document and repeat the invention). Generally, applicants for PVP are required to submit the plant material, which may be used by a government institution (or a private institution authorized by the government to conduct this role) to demonstrate stability and homogeneity through planting trials, also known as ‘DUS examinations’.
UPOV sets out the breeder’s rights to authorise various acts in relation to the PVP-protected variety, such as production, reproduction, offering for sale, marketing, importing and exporting. Significantly, UPOV allows breeders to use protected varieties as a source for the creation of new varieties, and then to market the new varieties without authorization from the original breeder (the ‘breeders’ exemption’). To respond to new scientific developments, though, UPOV 1991 extended the original breeders’ rights to varieties which are essentially derived from their protected variety, meaning ones that have been subjected only to minor modifications such as through genetic engineering.
3.9.7 The new UPOV - other features introduced by the 1991 Act
As compared to the previous versions of the Convention, UPOV 1991 extends the scope of the breeders’ rights in certain ways. One is that it limits ‘farmers’ privilege’: UPOV 1978 refers to the right of farmers to use seed harvested from protected varieties for private and non-commercial purposes (this is what is usually referred to as ‘farmers’ privilege’). Most parties to UPOV 1978 uphold this. UPOV 1991 does so too, specifying that the breeder’s right in relation to a variety may be restricted ‘in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting the protected variety’. However, since the 1991 Act, the State party must take measures to safeguard ‘the legitimate interests of the breeder’, which in the European Union is interpreted as ‘to ensure that the breeder receives equitable remuneration’. At present the strength of the ‘farmers’ privilege’ varies quite widely from country to country. Some countries, like France, have no ‘farmers’ privilege’ at all (with the exception, in France, of tender wheat), while the USA until the 1990s allowed farmers even to sell protected seed to other farmers.
UPOV 1991 also introduced other changes to PVP. Notable amongst these is the fact that the duration of PVP is lengthened (to 20 years, and 25 years for trees and vines) and that that all plant species must be covered. Another significant change is that patents on plant production processes, plants, seeds or genes relating to a PVP-protected variety are allowed - in other words ‘double protection’ of the same variety by PVP and patent is permitted.
New adherents to UPOV cannot choose but must join UPOV 1991, whereas UPOV 1978 continues to apply to members that joined prior to 1999 and have not ‘upgraded’ to the 1991 Act.
3.9.8 Technical cooperation under UPOV
Some countries do no DUS examinations, and benefit from the exchange of Examination results among UPOV members. The Office of UPOV hopes this will get easier once there is a full harmonisation of examination procedures amongst members. It is by no means a simple matter for a country to set up a PVP system from scratch including running the field trials.
The technical cooperation and services to members available from UPOV, including from the various Technical Committees, and through the Office’s practice of putting countries directly in touch with each other, to learn from each other, plays a useful role. Nevertheless, concerns have been expressed that this harmonisation contributes to a creeping PVP rule uniformity that may not suit many developing countries.
The UPOV Office also provides assistance and advice to countries wishing to join UPOV, on occasion through WIPO technical assistance processes. Rather than assessing the countries’ specific needs and advising on how UPOV could best be applied to the applicants’ circumstances the advice tends to consist of providing applicant countries with the model UPOV legislation.25 This is almost identical to the text of the UPOV Convention itself. Interestingly, recent draft legislation proposed through WIPO technical assistance contains a chapter on implementation, including provisions on enforcement and supervision that are not in the UPOV Convention itself.
3.9.9 More members, still the same club?
UPOV’s initial gradual expansion may have served a useful purpose for the older (read: European) members of the Union. A more rapid expansion in its first two decades might have led to the entry of ‘outsiders’ who may then have worked to change the culture in certain ways, such as by pushing UPOV to accept a broader range of national PVP regimes. It is plausible that UPOV’s long consolidation period made it easier to absorb the recent membership expansion without threatening the leadership or culture of the established custodians. Indeed despite UPOV’s membership having more than doubled in the last 15 years, with the concerns and characteristics of the new members being very different from those of the older members, the UPOV Office says that the nature of its work has not changed.
Prospective UPOV members are required to request an analysis of their law or draft law from the UPOV Council before they can join. If the law is deemed compliant with UPOV and has entered into force (but not necessarily been technically implemented), the Government or Intergovernmental organisation can proceed to ratify the Convention, thereby becoming an UPOV member. If modifications are deemed by the Council or Office as necessary for compliance, these must be effected before ratification is allowed.26 Obviously, this enables existing members of UPOV (as well as the UPOV Office and other observers) to request fairly strict conformity of new members, and may quite possibly give those UPOV actors able and willing to be assertive a degree of leverage over the legislatures of applicant countries. CIOPORA for example consistently submits comments on the draft legislation of countries applying to join UPOV. CIOPORA for example consistently submits comments on the draft legislation of countries applying to join UPOV. The UPOV Office plays an essential role in ‘guiding’ the aspiring member through the membership procedure including the assessment of ‘conformity’ of its law with the UPOV Convention and prepares the recommendation on this matter to the Council.
3.9.10 Why do countries join UPOV?
Why do countries join UPOV, and what role does the Office of UPOV and the Council play in shaping countries’ views on PVP that dispose them to seek UPOV membership?
A range of factors encourage countries to seek membership of UPOV. These include the possibility of accessing improved seeds and diversifying the seeds available within the country. Another reason that many developing countries often give is that UPOV membership can contribute to attracting foreign investment in the agricultural sector.
UPOV deploys significant resources to encourage non-members to join, conducting workshops and technical assistance missions to countries that have expressed an interest in joining. This in itself probably does not distinguish it from other international organizations, many of which also encourage and facilitate adhesion of new members. Perhaps UPOV differs though, in the lengths to which it goes to influence potential members’ policies. The UPOV Office has over the years been active in discouraging developing countries from adopting PVP systems that diverge from the UPOV norm, as has been documented with regard to Asian countries,and with regard to an African alternative sui generis model proposed in the late 1990s .
UPOV’s drive to attract new members has been most striking in the context of the WTO TRIPS Agreement. Article 27.3(b) of TRIPS requires WTO Members to ‘provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.’ TRIPS does not specify UPOV as providing the sui generis alternative to patents. Yet, a position state-ment based on an intervention by UPOV before the WTO’s Council for TRIPS in 2002 reads the plant variety protection system established on the UPOV Convention meets the requirements of Article 27.3(b) of the TRIPS Agreement. So far this is perfectly reasonable. But thestatement continues: ‘the introduction of a system which differs significantly from the harmonized approach based on the UPOV Convention will raise questions with regard to the implementation of the TRIPS Agreement’. This statement gives the impression that UPOV membership is essential for TRIPS compliance, which is false. But for countries unsure of where their interests lie with respect to IP protection in the field of plant breeding and anxious to avoid being criticized for failing to meet their TRIPS commitments, this is a powerful statement. And indeed, conversations during 2010 with a number of developing country delegates in Geneva have shown that the ‘conventional wisdom’ seems now to be that UPOV membership is required to implement TRIPS. UPOV’s mission receives a great deal of support from powerful nations. Nowadays, both the United States through its bilateral trade agreements and European countries, by way of economic partnership agreements or trade agreements, are pushing developing countries to commit themselves to applying for UPOV member ship, to adopting UPOV 1991-consistent standards, and even in some cases, to ‘make best efforts’ to provide patent protection for plants. The decision to do this is part of the deal developing countries agree to in exchange for enhanced access for other goods to developed world markets. Given the increasing competition among developing countries to access these markets, meaning the share of access is spread among more and more countries (or a few dominant ones like China), it is uncertain that this price is worth paying.
Moreover, several countries’ technical assistance programmed encourage UPOV conformity with no prior assessment of how PVP might benefit the country as
a whole. Providers of technical assistance often do not consult with local stakeholders such as farmers’ groups, public sector breeding institutions or local seed companies. In any event, there is generally little, if any, prior assessment of the suitability of the UPOV model to local conditions or the value of the trade-off. Thus, critics point out, there are instances where the intent appeared to have been more about protecting PVP rights of developed country businesses in the developing world rather than about helping the developing countries to produce or protect their own varieties, or determining what kind of incentive regime is best suited to each country’s circumstances.
3.9.11 UPOV and WIPO
UPOV is legally separate from the World Intellectual Prop-erty Organization (WIPO), and is not part of the United Nations. Despite UPOV’s formal separation from WIPO, the two have a close relationship. The UPOV Office is located in the WIPO building in Geneva, where UPOV meetings are also held. WIPO services the Office. And by formal agreement, WIPO’s Director-General is the Secretary-General of UPOV with the power to approve the appointment of UPOV’s Vice Secretary-General. The latter
oversees the day to day operations of UPOV.
WIPO regularly provides opportunities to make UPOV better known. For instance, the UPOV Office has given presentations of PVP and UPOV during WIPO’s Summer Schools on Intellectual Property, and WIPO technical assistance programmed often include references to UPOV and advice to UPOV non-members as to how to intro-
duce UPOV-consistent PVP legislation.
The present relationship between WIPO and UPOV is defined by the 1982 WIPO/UPOV Agreement. Much of the Agreement concerns the various administrative and practical tasks that WIPO must undertake for UPOV. These are not free of charge: UPOV is required to pay WIPO ‘for any service rendered to, and any expenditure incurred on behalf of, UPOV.’
The Agreement affirms the ‘complete independence’ of WIPO’s International Bureau and the UPOV Office in respect of the exercise of their functions. What is behind this legal independence from WIPO despite their having such a close relationship? Going back in time, UPOV was not unanimously welcomed. AIPPI, though by no means opposed to PVP, was especially firm in its criticisms of the Convention and the formation of UPOV, and expressed preference for incorporating PVP rules within the Paris Convention for the Protection of Industrial Property, now administered by WIPO and previously by BIRPI.31
3.9.12 UPOV as an Institution
The Office of UPOV is very small with a staff of 11 people of whom about half are involved in the substantive technical work of the Union. This small group consists of people with backgrounds in such fields as agricultural economics, agronomy, plant breeding and law. UPOV has an annual budget of around 6.5 million Swiss francs (approximately 5 million Euros). Most of its income derives from members’ annual contributions; the amount of which is defined by the number of ‘contribution units’ that apply to each member, determined on the basis of the member’s size. Five contribution units apply, for example, to Germany and the European Union, countries like Ireland or Australia contribute one unit each, Turkey 0.5, Brazil 0.25 and Slovenia, Uruguay or Viet Nam 0.2. A contribution unit amounted to approximately 53 000 Swiss francs (42 000 Euros) in 2008 and 2009. UPOV’s remaining income derives from interest, sale of publications, and paid participation in the UPOV Distance-Learning Course.
The highest body within the UPOV system is the Council, which comprises one representative of each UPOV member and has a President and Vice-President, each elected for a three year term. Regular sessions of the Council take place once a year, but in recent years the Council has tended to meet twice, once in October and once in March or April. Countries that have signed but not ratified the Convention can send observers, as can organization that have been granted observer status in the Council. The Council is subject to rules of procedure of which the latest version was adopted in 1982.Below the Council is the Consultative Committee. This Committee is the only UPOV body not open to observers. The Consultative Committee has a range of responsibilities. It has inter alia been delegated decision-making powers ‘concerning the granting of observer status to non-governmental organizations’, discussed in more detail below. Next down the hierarchy are two committees: the Legal and Administrative Committee and the Technical Committee. The work of the latter is assisted by a Working Group on Biochemical and Molecular Techniques, and DNA-Profiling in Particular (BMT)
and five Technical Working Parties covering Agricultural Crops (TWA), Fruit Crops (TWF), Ornamental Plants and Forest Trees (TWO), Vegetables (TWV) and Automation and Computer Programs (TWC).-
3.9.13 A select club
UPOV membership has expanded rapidly since the establishment of the WTO and the proliferation of bilateral trade agreements. 39 of its 68 current members joined after 1995. UPOV should no longer be seen as a European ‘club’ if the membership is anything to go by. Yet UPOV does not appear at all open to those who are not members ofthe ‘PVP community’. There are a number of reasons for this. The most obvious barrier is that PVP is a highly technical and scientific area of IP law involving specialised field testing procedures and requiring knowledge of biological and agricultural sciences including genetics and agronomy. But PVP is not a uniquely complex area of IP law. Rather, the technical character of UPOV’s work combined with its longstanding small membership (see section 2) endows UPOV with its atmosphere of being a ‘club of scientists’ and ‘club’ is indeed the word that recurs again and again in descriptions of UPOV, including by representatives of member countries and high-ranking UPOV officials. As one senior Geneva-based representative of a Latin American country to UPOV told this author in 2010,
‘everyone in this meeting knows each other; I do not feel comfortable here.’
Linked to the above point, the UPOV Office tends to communicate directly with representatives in capitals, leaving the Geneva-based delegates feeling sidelined. It recently appeared, for instance, that almost no-one in the Geneva missions of UPOV member countries had the password to the members-only section of UPOV’s website, as the UPOV Office imparts this only to the capital based designated representative.
Some of these impressions may be cosmetic and superficial, as is the fact that UPOV produces little public information, and its website is particularly uninviting and uninformative. The fact that the website has a password protected area at all has led many seeking to better understand UPOV to wonder what UPOV information is so sensitive that it must be kept from public view.
3.9.14 Non-governmental organization’ observer status with UPOV
UPOV’s Consultative Committee has the power to decide on granting observer status in the different UPOV bodies to international NGOs and intergovernmental organization. The rules governing the granting of observer status specify that such status ‘is reserved to those organization with competence in areas of direct relevance in respect of matters governed by the UPOV Convention. These rules stipulate that a non-governmental organization’s statutes will form the basis to determine that competence. Observer status in the various UPOV bodies ‘is granted for an unspecified duration.’ Until October 2010 observers consisted almost entirely of plant-breeding or biotechnology companies, associations of such companies, and intellectual property protection groups, including organization like the International Chamber of Commerce which, despite its long involvement in international IP rulemaking, has no particular reputation for ‘technical competence’ in a field as specialized as PVP. Yet, in 2009 public interest NGOs - including farmers’ groups - found that UPOV would not consider their applications for observer status, apparently on the grounds that they were unable to show such competence. When the Association of Plant Breeding for the Benefit of Society (APBREBES), comprising organization involved in issues relating to seeds policy in all regions of the world, and the European Coordination of Via Composing (ECVC, a farmers’ group) applied for observer status, UPOV informed them that their applications for observer status ‘could not be con- side red further’ until they demonstrated ‘competence in areas of direct relevance in respect of matters governed by the UPOV Convention.’
Lack of competence may have been the official justification, but the decision appears to have been politically motivated. The UPOV Office is reported to have been directly involved, providing members with examples of the applicant organization’ work that could be construed to be critical of the UPOV model.
In addition to perpetuating UPOV’s untransparent image, the 2009 process raised serious questions about governance within UPOV. Indeed, not only was UPOV not applying its own rules on observer status, it was subsequently untransparent in that it did not communicate what additional information the non-governmental observer candidates should provide for their applications to be considered. Moreover, the role of the Secretariat as ‘gatekeeper’ on this topic gave rise to concern about the scope of the role of the UPOV Office in governance of the organisation.
In October 2010, the UPOV Council did consider the applications of APBREBES and ECVC, which since the previous year had attracted the support of Norway and Switzerland and a large number of NGOs from around the world. This time the NGOs were granted observer status in various UPOV bodies. It may however be too soon to say whether this indicates a shift towards greater inclusiveness.41 Indeed, whilst several UPOV members spoke out about how NGO participation would enhance transparency in UPOV, at least one delegate said that ECVC’s objectives do not demonstrate the organization’s technical competence relevant to UPOV Technical Working Groups. Moreover, the October 2010 Consultative Committee saw tense discussions about ‘leaks’ of UPOV information to NGOs, and whether the UPOV Office or other UPOV members were responsible for these leaks. As an outcome, the Consultative Committee decided to establish a Working Group to review the rules concerning observers, and recommend appropriate changes. This Working Group, open to all members of the Union, will meet in Geneva in April 2011.
3.9.15 The fine line between outreach and advocacy
The UPOV Office does have views on such issues as TRIPS compliance, access to genetic resources and benefit sharing, disclosure of origin in IP, and the right to food,
despite claiming that it has no mandate beyond ensuring effective PVP systems. Being a ember driven intergovernmental organization, though, there is a line to be drawn between advocacy and legitimate outreach activities.
The UPOV Office presumes itself to have sufficient technical competence on such matters as the above issues to send position statements to, or even to participate in, the relevant forums. For example, whereas the Peruvian PVP regime provides for a disclosure of origin requirement and despite the eagerness of many developing countries to include a similar provision in their intellectual property regimes, the Office has declared that such mandatory disclosure of origin requirements are not allowed as they form ‘an additional condition of protection’. The Office has also reportedly advised the Egyptian government that a disclosure provision in its national law would preclude it from UPOV membership.
As with other position statements and submissions to other international forums and processes, it would be interesting to know how much input the UPOV Council put into drafting and approving the response to the Peruvian PVP law, or whether it was entirely an initiative of the Office. Indeed, it appears that the Office’s views have at times been presented as the views of members, and on occasion a UPOV member has criticized the UPOV Office for adopting a line that it disagreed with. Brazil, for in- stance, disagreed with a submission made by the UPOV Office to the Working Group on Access and Benefit Sharing of the Convention on Biological Diversity.
Another example is UPOV’s response to the United Nations Special Reporter on the right to food. The report was somewhat critical of the way that developing countries have been ‘led to’ adopt UPOV standards, and of the strengthening of breeders’ rights in UPOV 1991.UPOV’s response quotes extensively from UPOV documents, but does not engage with the substance of the criticisms voiced by the Special Reporters.
And, in reference to the discussion on page 11, there is no legal basis for implying that a non UPOV-compliant PVP law is contrary to TRIPS simply for being inconsistent with UPOV. The UPOV Office has been more than willing to play its part as an advocate. These examples suggest that the UPOV Office may not always have kept to the side of the line where it is supposed to remain.
3.9.16 Alternative UPOV Body
One obvious alternative to the UPOV system would be to eschew any special regime and extend the scope of patentable subject matter to plants including varieties as in the USA and Australia, rather than excluding these as in Europe. There are a number of reasons why this is probably inadvisable for most countries. For one thing, the normal extent of the private and experimental use exemptions in patent law is extremely and inappropriately narrow for plant breeding. Available evidence suggests that patents would be likely to stifle innovation and create excessively strong monopolies.
UPOV also has other advantages over patents. It provides some legal clarity where patents do not: whereas a single product may be protected by numerous patents, any one plant variety is covered by one PVP certificate. Unsurprisingly there is far less litigation than with patents. This may be due to the legal clarity of PVP, or to the fact that in plant breeding circles, a more cooperative and research-facilitative atmosphere prevails than in the biotechnology industry. Given the specificities of plant breeding and innovation in this field, it makes much sense to provide a special regime.
That the UPOV system was designed with and for the European plant breeding community does not automatically make it unsuitable elsewhere. But adaptations to the very different economic, social and agricultural and environmental conditions of its new members are probably necessary. Interestingly, India, Thailand and Malaysia have PVP systems that are based on the 1978 Act, but diverge from it, such as by conditionally allowing farmers’ sale of seed, and by allowing registration of farmers’ varieties. Another alternative to the UPOV system would thus be an international system that is more farmerfriendly and thus better suited to countries with large numbers of small-scale farmers who also engage in plant breeding. The African model law discussed above would be such a model as would the proposed Convention of Farmers and Breeders - COFAB for short - proposed by India’s Gene Campaign. There are also those who argue that PVP is unsuited to modern technology and science which has brought in new ways of developing and breeding new plant varieties, and thus that a fundamentally new system should be sought. Many, particularly amongst those who defend the rights to traditional knowledge and community rights, say that plants belong to the communities that breed and maintain them, and should only be protected, if at all, by collective user rights defined by these communities, not by property rights that are privately held. The preceding sections have sought to highlight key facets of the UPOV system, in order to explore the extent to which this system permits consideration of its interaction with, and impact on, public policy objectives of ensuring food security and biological diversity.The present section presents conclusions and recommendations following the preceding analysis. The first part develops some of the findings around core institutional issues that arise from discussion in previous sections. The final part of this section presents some recommendations on UPOV as an institution.
3.9.17 Transparency and participation
As in other areas, the institutions and officials responsi-ble for administering PVP rules must be democratically accountable and transparent in how they operate. They should seek a diversity of views, permitting all stakeholders and interested parties to have a say in how the relevant institutions are run. Indeed, one of the most frequent concerns this author has heard expressed during the preparation of this study turns around the perception of UPOV as lacking in transparency, as not making enough information public and being closed to views that differ from those of the members of the UPOV ‘club’. These criticisms may or may not be well-founded (particularly in light of the fact that UPOV does make a considerable amount of information available - and free of charge to not-for-profit groups). However, the fact that the perception of lack of transparency and openness is so consistently and widely expressed, including by officials of UPOV member coun-tries, suggests that UPOV could do much more to address these concerns.
For the time being it might be that the ‘clubbishness’ of UPOV is part of the problem, contributing to the fact that pro- and anti-UPOV views tend to be propagated in completely separate forums with little substantive debate. Some criticisms and concerns about UPOV are well-reasoned and should be debated openly; others are less well-reasoned and open debate will help clarify misconceptions.
Discussion in UPOV about observer status of not-for profit non-governmental organization is similar in many ways to those that took place in the WTO in the late 1990s, and in WIPO in the mid-2000s. Experience in these two bodies has shown that the increased possibility for a range of views to be expressed attenuated polarization of discussions in these policy areas, whilst broadening understanding of them. Until recently WIPO had a similar kind of observer ship profile as UPOV, and was criticized for a lack of openness and for being too influenced by ‘expert’ associations like AIPPI. The technical competence of NGOs who follow WIPO has improved considerably and their enhanced involvement as observers in WIPOforums is likely to have contributed to this. The PVP community would be well advised to follow WIPO’s example and open up to NGOs as observers, whatever their stance vis-à-vis the UPOV Convention, and encouragethem to engage constructively. UPOV members should not apply the technical competence criterion arbitrarily or selectively, or in such a way that it can be seen to be pretext to keep out stakeholders just because they have skeptical or critical perspective on UPOV or PVP.
A ‘development agenda’ for UPOV?
UPOV seems to have remained insulated from discussions about a ‘Development Agenda’ that have permeated discussions in WIPO since the mid2000s. These discussions call for a moderate and nuanced position regarding intellectual property,52 rejecting a context neutral and oversimplified perspective on IP’s impact on development. Development Agenda discourse finds that IP protection may facilitate economic growth but may also impede some aspects of development, particularly in such sensitive areas as agriculture, food and poverty-reduction policies. Whilst some parts of the Development Agenda clearly would not apply to the UPOV context, others would. This is for instance the case for technical assistance, which according to the development agenda, is to be ‘development-oriented, demand driven and transparent, taking into account the priorities and the special needs of developing countries as well as the different levels of development of Member States.’ Within WIPO a process has been initiated to bet ter integrate the Development Agenda into the distance learning programmers of the WIPO Academy, and a similar process could be applied in the context of UPOV distance learning and training activities. UPOV should also consider other elements of the Development Agenda and how they can apply to UPOV’s work.
3.9.18 Introducing flexibility into UPOV, or adapting it for the needs of the 21st Century -
The UPOV Convention may be insufficiently sensitive to the specific needs of a diverse range of countries, in large part because it is a one-size-fits-all system that was not designed with the developing world in mind, nor for a diversity of farming systems. If the UPOV Office and existing UPOV members allowed prospective members more flexibility in their wording and context of UPOV-implementing laws, this might partially address some of the challenges for countries to meet UPOV standards. Another way to ensure UPOV is more responsive to diverse countries concerns might be to consider re-opening UPOV 1978 for ratification.
Even if existing UPOV members were prepared to contemplate these options, though, the fact remains that the Convention - even its most recent revision was drafted when circumstances were very different from today: there was then less concern about loss of biological and genetic diversity, there was less concentration in the seed industry and there was less awareness of the need for agricultural systems to be able to adapt rapidly to changing environmental and climatic conditions. New international treaties have embedded rule son biodiversity, access and benefit sharing, in situ and ex situ conservation and farmers’ rights and privileges. Meanwhile ongoing negotiations are trying to deal with climate change and the role agriculture plays in emissions, mitigation and adaptation.
Moreover, despite the Union’s rapid recent expan-
sion, a large proportion of its members were not involved in designing its rules - and the majority of countries in the world remain outside. One likely reason that so many have not joined is that they remain skeptical about the merits of PVP and are unwilling to commit to an agreement that provides so little leeway for adaptation to local conditions and policy priorities.
Even if the critics of UPOV are entirely wrong, and that the best way to ensure longer food security, biological diversity and development is to maintain UPOV 1978 or UPOV 1991 type standards, it is a sign that better information and communication is needed that there is such widespread skepticism amongst the public, including government officials, of UPOV’s suitability to today’s challenges.
If the critics are right even on a few points, or the countries that remain outside do so because the UPOV system is not appropriate for their needs, a debate about a revision of the Convention suitable for the 21st century may soon be needed. Within this context UPOV members might consider revisiting the appropriate UPOV definition of the term ‘novel,’ particularly in the light of efforts in other forums to protect biological diversity and traditional knowledge, ways of permitting national requirements for disclosure of origin of genetic resources to be compatible with the UPOV Convention, recognizing within UPOV different approaches to plant breeding and conservation, including recognising Farmers’ Rights and in situ conservation, for example by adapting the current DUS criteria to these different approaches, the relevance, and WTO compatibility, of the reciprocity requirements in UPOV, the duration of PVP under UPOV, and clarifying the relationship between PVP and patents.
It may be that the UPOV system has reached a tipping point at which the issues are sufficiently important on their merits, and there are enough members willing
to engage in discussions about revising the Convention that it may soon become politically plausible to do so.
3.9.19 UPOV as ‘effective’ sui generis system
UPOV is the acronym for the French name Union Internationale Pour la Protection des Abstentions Vegetables translated to English as Convention for the Protection of New Varieties of Plants. The UPOV first founded in 1961 with six European countries, subsequently revised its Act during 1972, 1978 and 1991. The object of the UPOV is to protect the rights of breeders of new plant varieties by an IPR called Plant Breeders’ Rights (PBR).
In the ongoing TRIPS review process, a number of influential bodies, including the WTO itself, are pushing for a narrowing of the sui generis option to one legislative model provided by the Union for the Protection of Plant Varieties or UPOV. This is unfair and uncalled for. UPOV is not mentioned in the TRIPS Agreement when other relevant IPR treaties are. Independent legal and economic experts have reiterated that UPOV can not be enforced as the only 'effective' sui generis system for TRIPS. And that there is ample scope for flexibility and national discretion in interpreting the sui generis option. Developing countries must ensure that there is no strengthening of the TRIPS Agreement now. UPOV is clearly against the interests of developing country agriculture and against the interests of the farming community. It is anti-farmer and pro-corporate, and tailored to the industrialized agriculture of the developed countries where farmers are supported with huge subsidies.
1. UPOV tends to take positions and policies favoring the multinational seed companies.
2. From 1961 to 1991, the UPOV Act has consistently and systematically marginalized or nullified the exemptions granted to farmers.UPOV neither accepts farmers rights nor sees the reason for benefit sharing with the farming community for using the plant varieties bred and conserved by them.
3. According to a senior UPOV official, “The subject of farmers' rights is mainly the business of the FAO rights' appears also in Agenda 21, but not in the Convention on Biological Diversity. It is up to the institutions that are concerned with farmers' rights to explain what farmers' rights mean and what rights should be given to what farmers. It is not UPOV's business”.
4. In the UPOV system, IPR protection is available to the varieties bred by scientific breeders, institutions or corporates but not to farmers or community of farmers like the Indian law provides.
3.9.20 Why Gene Campaign opposes UPOV
The UPOV model is not in India's interest for several reasons.
i. There are no Farmers Rights in the UPOV system, only Breeders Rights.
ii. UPOV conditions are for industrial, not agricultural economies where only 2 to 5% of the population practices agriculture and there are no small and marginal farmers.
iii.UPOV laws are for countries where subsidy to agriculture is very high and farmers get paid for leaving their fields fallow.
iv.In Europe agriculture is a purely commercial activity. For the majority of farmers in Asia however, it is a livelihood.
v. In UPOV countries agricultural research is conducted by seed companies with private capital, so they maximise profits by market monopolies. In India and other developing nations, agricultural research is done in public institutions with the taxpayer’s money and it belongs to the people.
vi. The UPOV system is very expensive. The cost of a Breeders Right certificate could range from a few thousand to a few hundred thousand rupees. This will exclude small companies, farmers co-operatives and farmer-breeders from participating.
vii. If developing countries join UPOV, they shall be forced to accept the patenting of Plant Varieties which is not in their interest. After the 1991 amendment, both patents and Breeders Rights are used in UPOV.
3.9.21CoFaB AS DEVELOPING COUNTRY ALTERNATIVE TO UPOV
Gene Campaign and Centre for Environment and Development (CEAD) have drafted an alternative treaty to UPOV to provide a forum for developing countries to implement their Farmers and Breeders Rights. This treaty called the Convention of Farmers and Breeders, CoFaB for short, has an agenda appropriate for developing countries. It reflects their strengths and their vulnerabilities. It seeks to secure their interests in agriculture and fulfil the food and nutritional security goals of their people.
3.9.21 CoFaB seeks to fulfil the following goals:
* Maintain genetic diversity in the field * Provide for breeders of new varieties to have protection for their varieties in the market, without prejudice to public interest.
* Acknowledge the enormous contribution of farmers to the identification, maintenance and refinement of germplasm
* Acknowledge the role of farmers as creators of land races and traditional varieties which form the foundation of agriculture and modern plant breeding,
* Emphasise that the countries of the tropics are germplasm owning countries and the primary source of agricultural varieties
* Develop a system wherein farmers and breeders have recognition and rights accruing from their respective contribution to the creation of new varieties
3.9.22 The salient features of COFAB are as follows
Farmers rights : Each contracting state will recognize the rights of farmers by arranging for the collection of a Farmers Rights fee from the breeders of new varieties. The Farmers Rights fee will be levied for the privilege of using land races or traditional varieties either directly or through the use of other varieties that have used land races and traditional varieties, in their breeding program. Farmers Rights will be granted to farming communities and where applicable, to individual farmers. Revenue collected from Farmers Rights fees will flow into a National Gene Fund(NGF) the use of which will be decided by a multi-stakeholder body set up for the purpose. . The Rights granted to the farming community under Farmers Rights entitles them to charge a fee from breeders every time a land race or traditional variety is used for the purpose of breeding or improving a new variety. Rights granted to the farmer and farming community under Farmers Rights are granted for an unlimited period.
Breeders rights: Each member state will recognize the right of the breeder of a new variety by the grant of a special title called the Plant Breeders Right. The Plant Breeders Right granted to the breeder of a new plant variety is that prior authorization shall be required for the production, for purposes of commercial and branded marketing of the reproductive or vegetative propagating material, as such, of the new variety, and for the offering for sale or marketing of such material. Vegetative propagating material shall be deemed to include whole plants. The breeder’s right shall extend to ornamental plants or parts of these normally marketed for purposes other than propagation when they are used commercially as propagating material in the production of ornamental plants or cut flowers. Authorization by the breeder shall not be required either for the utilization of the new variety as an initial source of variation for the purpose of creating other new varieties or for the marketing of such varieties. Such authorization shall be required, however, when the repeated use of the new variety is necessary for the commercial production of another variety. At the time of application for a Plant Breeders Rights, the breeder of the new variety must declare the name and source of all varieties used in the breeding of the new variety. Where a land race or farmer variety has been used, this must be specially mentioned.
In order to promote a more sustainable kind of agriculture and without any prejudice to the quality and reliability of the new variety, Confab enjoins breeders of new varieties to try to base the new variety on a broader rather than a narrower genetic base, in order to maintain greater genetic variability in the field. Further, a variety for which rights are claimed must have been entered in field trials for at least two cropping seasons and evaluated by an independent institutional arrangement. The breeder at the time of getting rights will have to provide the genealogy of the variety along with DNA finger printing and other molecular, morphological and physiological characteristics. The right conferred on the breeder of a new plant variety shall he granted for a limited period, depending on the variety. In the event of a variety becoming susceptible to pest attack, the normal period of protection may be curtailed to prevent the spread of disease. In order to monitor this, periodic evaluations will be undertaken. The breeder or his successor shall forfeit his right when he is no longer in a position to provide the competent authority with reproductive or propagating material capable of producing the new variety with its morphological and physiological characteristics as defined when the right was granted. The breeder will also forfeit his right if the “Productivity Potential” as claimed in the application is no longer valid.
To give primacy to the goals of food security, it has been provided in Confab that the right of the breeder will be forfeited if he is not able to meet the demand of farmers, leading to scarcity of planting material, increased market price and monopolies. If the breeder fails to disclose information about the new variety or does not provide the competent authority with the reproductive or propagating material, his right will be declared null and void.
UNDP and Confab. The UNDP Human Development Report (HDR) 1999 has commended Gene Campaign’s Convention of Farmers and Breeders (Confab) as a “strong and coordinated international proposal.” in place of UPOV. “It 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.”
3.9.23 THE TRIPS - CBD LINKAGE
The Convention on Biological Diversity (CBD) and the WTO/ TRIPs are essentially two treaties in conflict with one another. Developing countries must push to give primacy to CBD in all matters relating to bioresearches. Some countries including India have taken the position in the TRIPS Council that CBD and TRIPS provisions must be linked.
The CBD which is a pro-developing country or pro- community treaty, supports above all, the protection of biodiversity and the rights of those local communities that have nurtured that biodiversity over generations. It also supports the viewpoint and interests of developing countries. The WTO/ TRIPs on the other hand represents the interest of the corporate sector, the most visible face of which is the “Life Sciences “industry. Rather than the conservation of biodiversity, TRIPs seeks to facilitate corporate control over biodiversity which in the era of biotechnology is one of the most sought after raw materials in the world.
In the Convention on Biological Diversity two provisions are notable form the TRIPs point of view, namely ; (i ) acknowledgement that biodiversity resources are the sovereign property of the country of origin, and (ii) acknowledgement of the need to equitably share benefits with indigenous communities for their contribution to conservation and their knowledge of sustainable uses of biodiversity. These provisions run completely contrary to TRIPs and point towards the most significant defect in the prevailing regime of Intellectual Property Rights (IPR).
In the use and transfer of biological material, the CBD makes it mandatory to disclose the source and method of obtaining the foundation material. All biodiversity resources are to be obtained only on the basis of prior informed consent (PIC) of the country of origin and after executing a Material Transfer Agreement (MTA). All this would involve confrontation with the procedures mentioned under the GATT / TO regime. Also, the CBD’s advocacy for preferential location of research and development activities and the transfer of technology on concessional terms to the countries of origin will come into conflict with the implementation of TRIPs.
TRIPS does not allow for the full exercise of national sovereignty over biodiversity (because it obliges countries to enact intellectual property rights on plant varieties). TRIPS does not allow countries to seek a share of benefits obtained from patented biodiversity (there is no provision requiring patentees to disclose the country of origin of any biological materials, therefore no claims can effectively be made from the countries of origin). TRIPS does not require patentees to fulfill access obligations towards genetic resources (it therefore condones and facilitates biopiracy).
TRIPS overrules (and legally compromises the development of) CBD Art 8(j) because patent claims can be worded to embrace and expand on indigenous knowledge without recognition of or compensation for it. Turmeric, Neem, and Basmati as also Phyllanthus amara and the diabetes formula based on Karela, Jamun & Gurmar, are well known cases of this but there are many others.
3.9. 24 Recommendations
1. UPOV should be more open to the participation of observers in its various bodies, including the secret traits of relevant international organization, and public interest non-governmental organization.
2. UPOV should provide more detailed and accessible information about the UPOV system and how it works, through a range of means including its website, written publications and through participation in meetings organized by a broader range of stake
3. UPOV should make preparatory documents of all meetings as well as meeting reports widely available on the UPOV website in advance. The website should no longer have any restricted areas; all currently restricted documents should be made available to the public free of charge.
4. Comments of UPOV members and observers, as well as by the UPOV Office, on the applications of new members should be made publicly available, including to other relevant bodies including the Secretariat of the Convention on Biological Diversity and of the International Treaty on Plant Genetic Resources for Food and Agriculture. The documents containing these comments should clearly indicate which are the comments of the UPOV Office and which are those of UPOV members or observers.
5. If the low developing country participation at UPOV meetings is attributable to financial considerations, the UPOV Council should explore the possibility of setting up a travel fund.
6. The UPOV Office should communicate not only with domestic PVP offices but also with the enema missions of UPOV member countries and (pending removal of any restricted sections) should give them the passwords to the UPOV website directly.
7. UPOV should make the distinction between what is expressed by the UPOV Office and UPOV members more explicit, in discourse and in practice.
8. The UPOV Office should scrupulously limit its activities to those technical and advisory roles it is mandated to perform, while avoiding activities that could be construed as advocacy.
9. Technical assistance provided to developing countries, whether by the UPOV Office or other agencies, should be based on prior assessment of what kind of PVP system can best further the overall development, environmental and food security goals of the country in question.
10. Countries wishing to join UPOV should be allowed some leeway in the wording of heir UPOV-implementing legislation, and UPOV might consider reopening UPOV 1978 for ratification.
11. UPOV should clarify what it means by ‘for the benefit of society’, taking into account the possible spillover effects of PVP regimes onto other actors or into other key areas of governmental policy.
12. UPOV should take cognizance of the relevant recommendations of WIPO’s development Agenda and consider applying them to its own work.
13. UPOV should integrate development principles into its training curricula, including its on-line distance learning course.
14. The relationship between WIPO and the UPOV Of fice, including the dual role of the Director-General of WIPO as Secretary-General of UPOV, should be reconsidered in light of WIPO’s status as a specialized agency of the United Nations.
3.9.25 The sui generis system
A sui generis (of its own kind) system of protection is a special system adapted to a particular subject matter, as opposed to protection provided by one of the main systems of intellectual property protection, e.g. the patent or copyright system. It means countries can make their own rules to protect new plant varieties with some form of IPR provided that such protection is effective. The Agreement does not define the elements of an effective system.
One possible sui generis system likely to be recognized as effective is the UPOV system of Plant Breeders' Rights (PBRs). This was initially developed in Europe and has now been adopted by the industrialized countries. The UPOV system has undergone several changes after its formulation in 1961. Amendments in 1972,1978 and finally 1991 which is now ratified, have resulted in almost no concessions for farmers and breeders. The 1991 amendment brings UPOV in line with patents. UPOV as the definition of ‘effective ‘ sui generis is being opposed by developing countries. India has submitted to the TRIPS Council that the definition of ‘effective’ must be left to nations and should not be determined internationally. Asian countries are not anxious to join UPOV since it does not serve their interests. This is borne out by the fact that only Japan , China and South Korea are so far members.
3.9.26 Farmers rights related of Breed
The Indian law recognizes the farmer not just as a cultivator but also as conserver of the agricultural gene pool and a breeder who has bred several successful varieties. The Act makes provisions for such farmers varieties to be registered, with the help of NGOs so that they are protected against being scavenged by formal sector breeders. The rights of rural communities are acknowledged as well. The rights of the farmer are defined so:
The farmer "shall be deemed to be entitled to save use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act.; Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.
Explanation: - for the purpose of clause (iii) branded seed means any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act."
This formulation allows the farmer to sell seed in the way he has always done, with the restriction that this seed can not be branded with the Breeder's registered name. In this way, both Farmers and Breeders rights are protected. The Breeder is rewarded for his innovation by having control of the commercial market place but without being able to threaten the farmers' ability to independently engage in his livelihood, and supporting the livelihood of other farmers.
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CHAPTER- IV
SEED INDUSTRY POLICY, INTELLECTUAL PROPERTY RIGHTS, AND AGRICULTURE IN INDIA
India’s experience with intellectual property rights and agriculture is closely tied to the country’s seed industry, which has evolved since the mid-1960s from a system of state-owned seed enterprises, research centers, and regulatory agencies to a system that now includes highly competitive foreign and domestic firms, rapidly expanding market opportunities, increasingly complex regulatory systems, and a range of new technology opportunities. The key policies that contributed to the transformation of India’s seed industry, including policies on IPRs, India’s formal seed industry was effectively launched with the introduction of the Seeds Act in 1966, a policy that gave statutory backing to a system designed to govern, manage, and regulate the production and distribution of seed for key food security crops. The industry operated through state monopolies and state certification agencies that relied primarily on publicly developed open-pollinated varieties, particularly modern rice and wheat varieties. Launch of the World Bank-aided National Seeds Project in three phases (1977-1978, 1978-1979, and 1990-1991) promoted the availability of high-quality, high yielding variety seeds in India. Establishment of state seed corporations under the project further strengthened the seed infrastructure in the country and contributed to shaping an organized seed industry. In 1983, the Seed Control Order began regulating private seed production and distribution by bringing seed under the umbrella of the Essential Commodities Act of 1955, which provides for the control of the production, supply, and distribution of and trade in certain commodities including rice, wheat, pulses, and oilseeds. In applying the Essential Commodities Act to seed, the government required seed dealers to obtain licenses and introduced regulations over the trade in seeds of non-notified varieties and hybrids conducted by the private sector.
It was not until the late 1980s that the state’s control over the seed industry began to loosen. The Industrial Licensing Policy of 1987 dereserved the seed industry, thus permitting large Indian companies (including companies having not more than 40 percent foreign ownership) to produce and market seeds in India. In 1988, the Indian government introduced the New Policy for Seed Development, a reform that led to significant change in the structure and regulation of the country’s seed industry (Ram swami 2002). The policy relaxed seed trade norms within the country; reduced import restrictions on germplasm, seed, and seed-processing equipment; and encouraged foreign company participation in the seed industry. The policy opened the door for private investment in high-value hybrids for vegetables, cereals, and cotton.
The New Industrial Policy of 1991 further relaxed restrictions over India’s seed industry by permitting foreign direct investment and technology transfers, while the Export and Import Policy of 2002-2007 lifted the restrictions on exports of all cultivated (other than wild varieties) seeds except for jute and onion.
The National Seeds Policy of 2002 emphasizes a regulatory framework ensuring quality seeds while facilitating a vibrant and responsible seed industry. As part of that policy, the government plans to increase India’s current less than 1 percent share in the global seed trade to 10 percent by the year 2020
by establishing and strengthening Seeds Export Promotion Zones (AGRICOOP 2002). The proposed Seeds Bill of 2004 (currently under review in parliament) aims to further regulate the quality of marketed seed in India and replaces the Seeds Act of 1966 and Seed Control Order of 1983. The salient features of
the proposed bill include mandatory registration of all varieties; registration of seed producers, dealers, and horticulture nurseries; self-certification of seeds by accredited agencies; compensation to farmers for underperformance of registered seeds; and penalties for selling substandard seeds and for giving false
information.
The National Food Security Mission launched in 2007 aims to increase production of rice, wheat, and pulses in India. Whereas the strategies of the mission include area expansion and productivity enhancements for wheat and pulses, no area expansion is planned for rice. Instead, for rice, the mission promotes productivity-enhancing technologies such as hybrid rice and a system of rice intensification. As part of the mission, assistance will be given for the purchase of pump sets in wheat production and sprinkler sets in pulse production in the implementing districts (AGRICOOP 2007).
4.1 Importance of Farmer's Right to Sell Seed
The implications of the farmer losing the right to sell seed are grave These could include Loss of income for the farmer Loss of control over seed production
Loss of self-reliance in agriculture Dependence of the farming community on multinational seed companies for seed an ever-present threat that MNCs can withhold release of seed to apply pressure. At the national level this could mean a compromise with national security since food security is in the forefront of national security. A nation that does not produce its own seed and its own food can not be a secure nation. However the pivotal importance of the farmer having the right to sell seed has to be seen in the context of seed production in India. In India, the farming community is the largest seed producer, providing about 85% of the country's annual requirement of over 60 lakh tons. If the farmer were to be denied the right to sell, it would result in a substantial loss of income for him. But far more importantly, such a step would displace the farming community as the country's major seed provider. Their only replacement if this happens will be the large Life Science corporations since budget cuts have seriously weakened the capacity and output of the other player, the public research institutions. It is important to understand the political economy of seed production and seed sale in India and in the world, to understand why it was absolutely crucial for the farmer to retain the right to sell. In India, the farming community is the largest producer of seed, supplying the bulk of India's seed requirement. The Agro-Chemical giants turned Life -Science Corporations have emerged as the largest seed producers in the industrialized nations. In Europe and the US, as also in Canada, Australia, New Zealand , Japan and to a lesser extent, Korea and some Latin American countries, seed production is now in the hands of the large corporations. Control over the seed sector was established by the simple expediency of buying up all the smaller seed companies. In India, such a strategy can not work because there are simply no seed companies of any significance or size that can be bought and that would transfer their market share to the MNC that bought it. In India, a strategy to control seed production would have to rest on knocking the farmers out of the market by some other means. Since they are not organized in a company that can be purchased, this can only be done, by legally taking away their right to sell seed. If the farmer can be stopped by law from selling seed (and by implication, producing seed), the market automatically becomes available to the next alternative, the MNC. This is precisely why the Farmers Right clause in the Indian PVP legislation has been the subject of such a tussle between the seed industry and pro-farmer groups like Gene Campaign. Weak Farmers Rights will allow seed corporations to dominate the seed market. Strong Farmers Rights keeps the farming community alive and well as viable competitors and an effective deterrent to a take over of the seed market by the corporate sector. Control over seed production is central to self-reliance in food. The need for this self-reliance can not be over-emphasized. Food security is in the forefront of national security. A nation that does not produce its own seed and its own food can not be a secure nation.
4.2 Other kinds of rights
Apart from the right to sell (unbranded) seed of protected varieties as before, the rights of farmers and local communities are protected in other ways too. There are provisions for acknowledging the role of rural communities as contributors of landraces and farmer varieties in the breeding of new plant varieties. Breeders wanting to use farmers varieties for creating Essentially Derived Varieties (EDVs) can not do so without the express permission of the farmers involved in the conservation of such varieties.
Essentially Derived Varieties (EDV) are those varieties that are more or less (essentially) the same as the parent variety except for limited, specific changes. Varieties are considered essentially derived when they are developed in such a way that they retain virtually the whole genetic structure of the earlier variety. Most genetically modified (GM) varieties are EDVs. For example Bt cotton is a cotton variety, identical to its parent except for the single difference of containing a bacterial gene from the Bacillus thuringensis. So also Bt corn. Any person, governmental or non- governmental agency is entitled to register a community's claim and have it duly recorded at a notified centre. This intervention enables the registration of farmer varieties as sources of germplasm, even if the people themselves can not do this themselves due to illiteracy or lack of awareness. If the claim on behalf of the community is found to be genuine, a procedure is initiated for benefit sharing so that a share of profits made from the new variety goes on behalf of communities, into a National Gene Fund.
4.2 Disclosure
Other details supportive of the rights of farmers are the explicit and detailed disclosure requirements in the passport data, which has to be submitted at the time of applying for a Breeders certificate. Passport data refers to the data about the parentage of the new variety. In this case it includes details like name and location of any farmers varieties used. If any concealment is detected in the passport data, the Breeders certificate stands to be cancelled.
• GURT (terminator) forbidden
There is a clause prohibiting breeders from using sterile seed technologies. Breeders will have to submit an affidavit that their variety does not contain a Gene Use Restricting Technology (GURT) or terminator technology.
• Exemption from fees
Further protecting farmers from the new set of provisions being put in place, the Act stipulates that if farmers wish to examine documents and papers or receive copies of rules and decisions made by the various authorities, they will be exempt from paying any fees. Such fees would be payable by all other people wanting to examine documents and receive copies of decisions from the National Authority, the Registrar, the Tribunal and various other committees.
• 4. 3 Protection against innocent infringement
The law has also attempted to address a concern voiced by several quarters, that when the new system of Plant Breeders Rights is imposed for the first time, there may be cases of unknowing infringement of Breeders Rights. Section 43 specifies that the farmer can not be prosecuted for infringement of rights specified in the Act if he can prove in court that he was unaware of the existence of such a right. So if the farmer uses the registered name of the breeder informally, while selling seed, he is protected if it can be shown that he did not know that there was a new law in place which places some restrictions on his traditional rights, including the right to sell seeds.
• Benefit Sharing
The use of farmer varieties to breed new varieties will have to be paid for. Revenue generated in this way is to flow into a National Gene Fund..
4.4 Biodiversity Policy
During this same period, issues related to biodiversity emerged in the Indian policy discourse and among policymakers. India, being a party to the United Nations Convention on Biological Diversity (CBD), passed the Biodiversity Act in 2002. That act provides provisions for regulated access to biological resources by end users for various purposes, including scientific research and commercial activities. Some of the provisions of the Biodiversity Act affect seed trade and regulate trans border movement of germplasm and prerelease seed. Under the act, a National Biodiversity Authority (NBA) was established in 2003. NBA is responsible for decisions pertaining to germplasm access and benefits sharing, as well as approval for access to and transfer of biological resources or results to foreign citizens, companies, or nonresident Indians. Also, since 2002, India has been a party to the International Treaty on Plant Genetic Resources for Food and Agriculture, which, in harmony with the CBD, aims at the conservation and sustainable use of plant genetic resources for food and agriculture and the fair and equitable sharing of benefits arising out of their use. How these regulations affect germplasm exchange, a key component in the R&D of new varieties, and private R&D investment for crop improvement is still a debatable topic.
IPR Policy
Intellectual property rights became a concern in Indian agriculture and in the seed industry when India joined the World Trade Organization (WTO) in 1995 and signed on to WTO’s Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement. Article 27.3(b) requires signatory countries to provide protection for plants in the form of patents or a system created specifically for the purpose (“sui generis”), or a combination of both.
In 2001, in line with the TRIPS guidelines, the government passed the Protection of Plant Varieties and Farmers’ Rights Act (PPV&FR Act) with the objective of (1) providing an effective system for protection of plant varieties; (2) protecting the rights of farmers and plant breeders; (3) encouraging the development of new varieties of plants; (4) stimulating R&D investment and seed industry growth; and (5) ensuring the availability of high-quality seeds and planting materials to farmers. The PPV&FR Act provides for protection of novel and extant varieties.2
4.5 The Impact of Policy Reforms on Innovation in India’s Seed Industry
As a result of the successive policy changes since the 1960s, India’s seed industry has expanded substantially (Table 3). The commercial seed market, dominated by the private sector with a private/public ratio of 76:24 measured by volume, accounted for 25 percent of the total potential seed market in 2005. The varietal seeds farmers retain from prominent food and commercial crops account for the remaining 75 percent of the seed market (Rabobank 2006). Currently, in addition to a few (five) multinational seed companies, the Indian seed market is host to an estimated 410 domestic seed companies, 10 of which can be classified as large in size, 50 as medium, and 350 as small (Kumar 2010).
The top 10 companies in the private sector accounted for about 25 percent of the total volume in the private sector, and more than 80 percent of companies operated as trading companies with no research investments in 2005 (Rabobank 2006). During 2008-2009, the industry generated revenues between $1.3
billion and $1.5 billion and ranked as the world’s fifth largest seed market. The market for hybrid maize, hybrid pearl millet, and hybrid rice seed alone—all of which are cereal crops where private firms predominate in production and distribution—exceeded $210 million during this same period (NSAI 2010;
Rao 2008). The Indian seed industry is growing at an average rate of 12 to 13 percent per year (Rabobank 2006). the private sector has grown in importance in recent decades. State seed companies are now mostly confined to distributing certified seeds in the high-volume, low-value segment of the varietal
wheat, rice, pulses, and cotton seed markets. The private sector, on the other hand, is making sizable inroads in the higher-value segment of the seed market, first with the development and dissemination of vegetable hybrids, then with hybrids of sorghum and pearl millet, followed by maize, cotton, and, most recently.
In terms of specific crops, the transformation is particularly noticeable with respect to pearl millet. Pray and Nagarajan (2009) find that as of 2005, 60 percent of the total pearl millet area was planted with more than 70 hybrids, of which at least 80 percent were hybrids from the private sector.
Similarly, for maize more than 50 percent of R&D effort in India is carried out by the private sector, which supplied 70 percent of total maize hybrids in 2003.
The private sector has not only invested heavily in new crops and technologies, but has also pursued legal IPR protection under the 2001 PPV&FR Act. In 2008-2009, 64 percent of the 460 PVP applications received by the PPV&FR Authority were from the private sector, with the remaining 36 percent from the public research system and farmers themselves. As shown in Table 4, the largest number of applications was submitted for crops where hybrids, particularly private hybrids, are predominant.
4.6 What are the key factors behind the growth of India’s seed industry and, more importantly,
Private R&D investment in agriculture? Here, we examine the evidence on the impact of policy reforms on private investment in agricultural R&D in India. An early study by Morris, Singh, and Pal (1998) examined the impact of policy reforms on India’s maize seed industry. The study used data collected from surveys of public research organizations and private maize seed companies conducted in 1994 and 1995, respectively. Their findings showed that within months of the policy reforms in the late 1980s, dozens of new companies (both Indian-owned and subsidiaries of multinationals) sprang up and began producing maize seed. The study estimated that the share of proprietary hybrids of maize increased from 0 percent in 1981 to 58 percent in 1992, with a major shift occurring from 1989 onward, while private research expanded rapidly from a similarly negligible base. In a study on the Indian seed industry, Gadwall (2003) estimated that the private sector’s real investment in R&D quadrupled between 1986 and 1998.
A subsequent study on Asia’s maize seed industry by Gracie (2003) found that because of the increased private R&D investment in maize, the annual growth rate (percent/year) of sales of private maize hybrids in India was much higher at 32.4 percent than that of the public sector (2 percent) during 1990-1998. Importantly, the study finds that the concomitant increase in maize production during this period resulted mainly from yield gains and not area expansion. Studies by Pray, Ram swami, and Kelley (2001) and Pray and Ram swami (2001) provide similar insights for several other crops. Using a unique dataset that captures private seed firm activity in 1987 and 1995, these studies examined the direct and indirect quantitative effect of policy reforms of the late 1980s on private R&D investment in agriculture. The studies concentrated on hybridized crops where private R&D investment was most significant, namely cotton, maize, sunflower, sorghum, pearl millet, hybrid rice, and rapeseed/mustard. Arguing that the policy reforms have encouraged several large firms (both foreign and domestic) to enter the industry beginning in 1987, these studies estimate that such firms accounted for about 36 percent of the increase in R&D spending between 1987 and 1995, and that R&D investment would have been $1.5 million lower in the absence of such firms. Pray and Ram swami (2001) also found that the growth in R&D expenditure by large incumbent firms can be partially explained by the competitive pressure of new large entrants, which forced local firms to invest more in research to remain competitive, even after controlling for factors that favored growth in R&D spending by large incumbent firms, such as increased demand in domestic markets and the development of rice and rapeseed hybrids in the early 1990s. Furthermore, these studies found that the growth in R&D is partly attributable to the entry of several small firms with plant-breeding programs that had entered the industry since 1987 and focused on hybrids of pearl millet, sorghum, and cotton. Although they suggest that the entry of the small firms was driven by growth in the market for private hybrids and not by policy reforms, they also recognize that firms’ breeding programs were dependent on policy reforms that improved the access and availability of breeding materials from public research organizations, from foreign firms, or through importation from other foreign sources.
Importantly, the study by Pray and Ram swami (2001) demonstrated that policy reforms that encouraged the development and distribution of private hybrids resulted in significant increases in crop yields of pearl millet, sorghum, and maize in India’s semiarid tropics. In a study analyzing the private seed industries of pearl millet and sorghum in India, Pray et al. (1991) calculated that seed companies captured 18.5 percent of the yield increase of hybrid sorghum and 6 percent of the gains from pearl millet hybrids. Conversely, Ram swami (2002) argued that the absence of a sufficient IPR policy regime to
protect parental lines of hybrids in India has forced the private sector to invest more in developing double-cross hybrids, which are more difficult to imitate but yield 10 to 15 percent less than single-cross hybrids. Gerpacio (2003) echoes this concern, noting that without enforceable IPRs, many private
companies may be reluctant to release their best maize hybrids because of the fear of losing proprietary control over their inbred lines.
4.7 Is UPOV appropriate for developing countries
The Indian legislation has been hailed as a mature and balanced legislation, which has succeeded in showing the way to developing countries, to create alternatives to the UPOV system. The interests of developing countries are not served by UPOV, which is completely insensitive to their needs. In all fairness, UPOV was not created for developing countries and therefore does not address itself to their concerns. In understanding the UPOV system, it is crucial to understand that right from 1961, even when it was more flexible than it is today, UPOV granted only one right, the right to the Plant Breeder. There was never any concept of Farmers Rights. What was granted at best was an exemption to farmers and researchers, from the otherwise exclusive rights granted to the breeder.
The Union for the Protection of New Plant Varieties (UPOV), is a corporate backed , organization based in Geneva. It was set up in 1961 at a time when investments in agricultural research in western nations were diminishing in the public sector research establishment and moving in to private hands. This was a logical step in industrialized economies where the percentage of people engaged in agriculture was reduced to about 2 to 5% of the total population. As the corporate sector made private investments, it sought returns on these investments and set up UPOV to protect the interests of breeders who were increasingly corporate breeders. UPOV started as a flexible system, which apart from granting breeders rights was not particularly concerned about restricting the exemptions it provided to the other players, namely farmers and other researchers. This began to change as the corporate breeders consolidated their hold on the plant breeding and seed producing industry. Amendments to the UPOV convention were brought in 1972, 1978 and 1991. All these amendments had one goal, to further strengthen the hold of the breeder and reduce any exemptions that were granted in early versions of the convention. The valid treaty of today is the 1991 treaty which has almost exclusive rights of breeders, no exemptions for farmers or researchers. In fact UPOV has moved to accept the patents system now so that it is not only a platform for breeders’ rights but also for patents on plant varieties. In short, UPOV provisions are not suited to the agricultural conditions of developing countries nor are they good for supporting the livelihoods of farming communities.
4.8 Public policies, private investment and productivity growth
With the exception of the studies discussed in the previous section, prior analyses of policy reforms and technological change in India have focused on their impact on private investment in agricultural R&D. Here, we take this analysis one step further by examining the impact of policy change and technological change on agricultural productivity. Specifically, we examine the impact of the 1988 National Policy on Seed Development (NPSD) and biological IPRs associated with hybridization on changes in the annual maize and pearl millet yields in India.
In effect, this empirical exercise is a demonstration of how past policy reforms and technological changes have successfully increased yields in the past, thus suggesting that similar efforts that leverage private-sector involvement can be applied to other crops—particularly rice and wheat—in the future. An empirical examination of this hypothesis is presented below.
4.9 Background: Maize, Pearl Millet, Rice, and Wheat in India
As a starting point, we briefly characterize the four main staple crops under discussion: maize, pearl millet, rice, and wheat.7 Table 6 presents the major production statistics for those crops in India. The maize production regions in India can be classified into two production environments: traditional maize-growing areas, which include Bihar, Madhya Pradesh, Rajasthan, and Uttar Pradesh; and nontraditional maize-growing areas, which include Karnataka and Andhra Pradesh. Traditional maize-growing areas account for about 60 percent of total maize area and 40 percent of total maize production in India. In traditional cultivation systems, the crop is grown primarily as a food crop, whereas in nontraditional systems, the crop is grown mainly for commercial purposes (that is, poultry feed). Maize is replacing sorghum and pearl millet as a feed and fodder crop. The unit cost of production of maize is higher in traditional maize-growing areas except in Bihar, where the moisture regime and climatic conditions favor wide adoption of improved cultivars and higher maize yields (Joshi et al. 2005). Pearl millet is typically grown as a dual-purpose grain and fodder crop in the semiarid regions of the country. Because of the increase in per capita income, food consumption of pearl millet is declining;
however, its demand for use in the poultry and animal feed sector is increasing (Pray and Nagarajan 2009). Rajasthan, Gujarat, Maharashtra, Haryana, Uttar Pradesh, Madhya Pradesh, Karnataka, Andhra Pradesh, and Tamil Nadu are the major pearl millet-producing states in India. Rice, the largest food crop in India in terms of cultivated area and yield, is grown in five production regions: the Northeast (Assam and northeastern states); the East (eastern Uttar Pradesh, Bihar, West Bengal, Orissa, Chhattisgarh); the North (western Uttar Pradesh, Punjab, Haryana, Uttarakhand); the West (Gujarat, Maharashtra, Rajasthan); and the South (Tamil Nadu, Karnataka, Andhra Pradesh, and Kerala). Rice can be cultivated in the kharif (winter), rabi (summer), and pre-kharif (autumn) seasons in India, depending on the production region, agro ecology, and farming system. Rice is primarily a food crop, although the straw is an important source of livestock fodder in many regions.
Wheat, the second largest food crop in India, is produced primarily in the country’s northern region. The main wheat-producing states are Punjab, Haryana, Uttar Pradesh, Bihar, Madhya Pradesh, Rajasthan, and Gujarat. Winter wheat is the most important class of wheat grown in India. Like rice, wheat is primarily a food crop, but is used as a source of livestock fodder.
The area under cultivation for each crop has shifted over the last decade. Most significant is the change in maize area due to increases in demand for livestock and poultry feed. Also significant is the (somewhat smaller) decline in area under pearl millet cultivation, which reflects the effects of consumers substituting out of millet and into other staples and no staples as a result of rising incomes. Meanwhile, rice area under cultivation has remained relatively stable, although wheat area has expanded.
During the last decade, the changes in maize and pearl millet yields have been noticeably greater than the changes in rice and wheat yields (Table 6). Figures 1 and 2 illustrate the trends more clearly, showing that yield growth rates of maize and pearl millet have increased since 1988, with the highest growth rates during 1989-1997, but yield growth rates of rice and wheat peaked during the Green Revolution period (1968-1988) and have not recovered since.
There are several explanations for the relatively late (yet rapid) growth in maize and pearl millet yields, many of which have been discussed earlier. First is the contribution of public research: Although the Indian and international agricultural research systems were focused primarily on rice and wheat improvement in India during the 1970s, their subsequent investments in maize and pearl millet paid off in later time periods (Pray et al. 1991; Joshi et al. 2005). Second, and of comparable importance, is the change in India’s policy environment in the mid-1980s that encouraged the entry of private companies into the seed sector. The 1987 Industry Licensing Policy and the 1988 New Policy for Seed Development (discussed earlier), combined with improved access to hybrid breeding lines for maize and pearl millet, encouraged rapid entry of private firms into the seed business for these two crops. In effect, these events converged in 1987-1988 to open up the Indian seed market and make hybrid breeding lines more readily available to private firms (Pray et al. 1991; Morris, Singh, and Pal 1998). Prior to 1988, private firms played a negligible role in the seed industry for these two crops, and private maize and pearl millet hybrids were virtually nonexistent. Twenty years later, the outcomes of these events are readily apparent. Private companies supplied 82 percent of the total volume of high-yielding pearl millet varieties/hybrids to farmers in India in 2006-2007 (Pray and Nagarajan 2009). The private sector carries out more than 50 percent of maize R&D in India (Joshi et al. 2005). Table 6 provides more decisive indicators in the form of high seed replacement rates and area under hybrids for both maize and pearl millet. As might be expected, seed replacement rates of hybrid crops are much higher than those of self-pollinated crops, evidence of the higher potential for appropriability of hybrid crops.
4.10 Key Hypotheses
As discussed earlier, there is ample theoretical and empirical evidence to suggest that increased potential for appropriability and excludability, either through biological or legal forms of IP protection, can lead to increased private investment in agricultural R&D However, what remains to be seen is whether increased private investment in crops triggered by increased appropriability (either biological or legal) has led to increases in crop productivity in developing countries. As mentioned earlier, studies on the impact of legal forms of IPRs on crop productivity in industrialized countries show mixed results, and studies in developing countries are few and far between. Since implementation of PVP regulations in India began only in 2007, a sufficient body of data has not yet been accumulated to analyze the impact of this legal form of IPR protection on productivity. But much can be learned by drawing on experiences from the late 1980s, when policy changes opened up India’s seed industry to private investment and hybrids provided private firms with a biological form of IPR regulation. Specifically, the difference in the private sector’s response to the policy reforms of the late 1980s between hybrid crops (that is, maize and pearl millet) and self-pollinated crops (that is, rice and wheat) suggests that favorable policy changes combined with biological forms of IPR protection are essential to attracting private investment. What remains to be seen is whether these factors are similarly influential in increasing productivity. The difficulty in obtaining consistent data on area under specific varieties and hybrids, ownership details of varieties and hybrids, varietal yields under farmer conditions, and so on frustrates this type of inquiry. Thus the empirical exercise undertaken here tests whether a structural change in the yield trends for these crops occurred following the passage of NPSD in 1988, evidence of which would indirectly suggest a positive response to policy reforms and technological change.
Thus, we hypothesize here that supportive policy changes and enforceable IPRs encourage greater private investment in the research, development, and delivery of improved seed, ultimately leading to increases in yields. We test this hypothesis by examining yields since 1966 for maize and pearl millet crops, and comparing them with rice and wheat to shed light on whether policy reforms and enforceable IPRs lead to faster genetic improvement and thus to faster yield growth.
4.11 Results
In this section we present estimation results of yield models of maize, pearl millet, rice, and wheat. Diagnostic tests were conducted to examine for the presence of nonstationarity and autocorrelation. Based on the Wooldridge test for autocorrelation in panel data, we made necessary corrections for rice and wheat estimations. To address correlation across the panel (that is, states) the panel data were estimated using the feasible generalized least squares (FGLS) method. Because of the positive and statistically significant correlation between proportion of area under high-yield varieties and proportion of area under irrigation, we include only one of them in the model specification. Results using different specifications of the model are included to test for robustness of the results. The positive and statistically significant coefficient on the policy change variable supports the hypothesis that yield of maize, a hybrid crop,
increased since the passage of NPSD in 1988. In other words, we find a positive and significant structural change in the maize yield trends since 1988 versus prior to 1988.
4.11 POLICY IMPLICATIONS
By comparing and contrasting the results of yield trends for hybrid crops (maize and pearl millet) with those of self-pollinated crops (rice and wheat) in India, this study suggests the following. First, positive and statistically significant structural changes in the yield trends of hybrid crops occurred following the introduction of policy reforms in 1988. Second, no such changes in yield trends occurred for self-pollinated crops.
Although alternative explanations may exist, these findings suggest that the combination of supportive policy changes and enforceable (biological) IPRs encouraged greater private investment in maize and pearl millet improvement, ultimately leading to increases in yield growth rates. The statistical evidence pointing to structural changes in yield trends—when viewed alongside the well-documented historical evidence on changes in the public and private sectors’ roles in crop-specific research, development, and delivery—suggests that India has leveraged both public science and private investment to accelerate productivity growth with respect to these two crops. In sum, the continuous yield gains generated by long-term public investment in research, policy reforms that encouraged private investment, and IPR protections conferred by maize and pearl millet hybrids represent a successful moment in Indian agriculture.
Despite this success, policymakers and analysts sometimes overlook or downplay the need for incentives created by public policy to stimulate private investment in crop research, development, and delivery. This has several implications for policy decisions, policy execution, and corporate strategies in India, all of which could otherwise influence India’s long-term agricultural productivity growth and food security. We consider several such implications in the subsections that follow.
Results from this analysis imply that efforts to leverage the private sector as a means of revitalizing growth rates of rice and wheat yields may depend significantly on the introduction of some form of IPR protection (biological or legal) that encourages private investment. But there remains deep-rooted concern over the ability of well-designed policies to encourage the development of proprietary technologies that can generate new yield gains in Indian agriculture.
4.12 Potential of Private Hybrids
The private sector is well versed on the successful introduction of private hybrids of maize and pearl millet in India. Hybrids provided private firms with a way to appropriate the gains from innovation, and in the absence of sufficient legal IPR mechanisms, private firms will likely continue to invest in developing hybrids and conferring new traits on hybrids. This has already been demonstrated with the rapid diffusion of private cotton hybrids and, later, private genetically modified (GM) cotton hybrids conferred with the insect-resistant trait. To be sure, agricultural biotechnology has opened up new areas of potential in the Indian seed market. Private firms have managed to commercialize insect-resistant (Bacillus thuringiensis [Bt]) cotton, generating impressive impacts in India’s cotton sector. As of 2008, Bt cotton was cultivated on more than 80 percent (approximately 7.6 million hectares) of India’s cotton area by an estimated 5 million smallholders, and it has contributed to pesticide use reductions of 42 percent, yield increases of 30 percent, and increases in profits by 47 percent, transforming India from the world’s third largest cotton importer in 2002-2003 to its second largest exporter in 2007-2008 (Sadashivappa and Qaim 2009; James 2008; Gruère, Mehta-Bhatt, and Sengupta 2008).
4.13 The Continued Importance of Public R&D Investment
The appropriability offered by hybrids is not enough to encourage private investment in all crops. Other incentive mechanisms—other push and pull factors—are necessary. This includes public investment in upstream science and technology.
A fitting example here may be hybrid rice. Even though hybrid rice has the potential to accelerate India’s sluggish yield growth in rice, other factors are confounding its uptake, including high levels of yield variability and poor grain and cooking qualities (see, for example, Ramsey et al. 2003 and
Jamaica 2002). This may suggest the need for public investment in more upstream research on hybrids, even despite concerns that the inherently commercial value of hybrids should militate against the use of public funding for research and development.
4.14 Possibilities of an Innovation Act for India
There is a need for more effective mechanisms to encourage the commercialization of public research in India. This suggests the need for reforms in how public research materials make their way into private breeding programs. Despite the large public stocks of germplasm and parental lines in research organizations and universities, the mechanisms with which to transfer and exchange materials, whether on an exclusive or nonexclusive basis, are still wanting.
One step in the right direction could be the promulgation of an act similar to the Bay-Dole Act (Unnikrishnan 2010). The Bayh-Dole Act, introduced in the United States in 1980, allows public research organizations and universities to acquire patents over inventions that result from publicly funded research, and provides incentives for the inventors or their organizations (for example, remuneration on the order of 30 percent of any royalties earned from commercial licensing) to promote further innovation. The Indian adaptation—the proposed “Protection and Utilization of Publicly Funded Intellectual Property Bill, 2008,” or the Innovation Bill—would similarly allow public researchers, research organizations, and universities to patent their research, license their research for commercial use, and secure remuneration in exchange for commercial use (DST 2008). Although the exact provisions of the proposed legislation are still under discussion, the Innovation Bill could be one mechanism that would more fully integrate public research into India’s burgeoning agricultural innovation system.
4.15 Need for an Enforceable Legal IPR Regime
Neither public R&D investment nor commercialization of private hybrids is sufficient to encourage greater private investment in India’s seed industry. Although hybrids provide a firm with protection against farmers reusing the seed (and thus forgoing remuneration to the firm for its investment in R&D), they are fairly ineffective in preventing other firms from stealing its research. Thus, the need for an enforceable legal IPR regime remains, particularly if private firms are to protect themselves from the competition, diversify into lucrative crops and markets, and invest beyond hybrids. Current developments in India show some positive sign of progress on this front. The large number of applications from the private sector for PVP certificates for novel varieties in India suggests that industry is responding positively to the 2001 PPV&FR Act. But the ability of the courts to adjudicate infringement cases in a speedy manner, and to ensure the protection of those who have had their IPRs violated by infringements, remains to be tested. When PVP certification is combined with effective implementation of the 2002 National Seeds Policy and the (still pending) 2004 Seed Bill, both firms and farmers stand to gain. Firms will have a much greater incentive to innovate as a result of the strong combination of legal IPRs, mandatory registration of varieties, and registration of seed producers and dealers. This combination can also protect farmers from spurious seed, predatory corporate practices, and other behaviors that exploit the inherent information asymmetries between farmers and seed sellers.
4.16 Ipr on biological material
The key element of the TRIPS Agreement for agriculture and food security is the requirement for WTO Members to make patents available for any inventions, whether products of processes, in all fields of technology without discrimination. One reason for greater interest in patents is the rapid development of biotechnology, especially in the OECD countries, and its application in agriculture. Apart from Article 27.3(b), two other Articles permit exceptions to the basic rule on patentability:
1. When members want to prevent the commercial exploitation of the invention to protect order public or morality; this explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment (Art 27.2).
2. Diagnostic, therapeutic and surgical methods for the treatment of humans or animal (Art 27.3(a)).
Members may also provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties (Art 30).
Patents must also be available and patent rights enjoyable without discrimination as to the place of invention and whether products are imported or locally produced the so-called 'national principle' (Art 27.1). According to Article 28.1(a) of the TRIPS Agreement, patents relating to products confer the right to prevent third parties from "making, using, offering for sale or importing for those purposes the product" without the patentee's consent.
4.17 Exemption from fees
Further protecting farmers from the new set of provisions being put in place, the Bill stipulates that if farmers wish to examine documents and papers or receive copies of rules and decisions made by the various authorities, they will be exempt from paying any fees. Such fees would be payable by all other people. The use of farmer varieties to breed new varieties will have to be paid for. Revenue will flow into a National Gene Fund. Despite its good intentions of protecting the interests of the farming community, the formulation of this section is likely to create problems in implementation because the language is ambiguous. The Gene Fund should be the recipient of all revenues payable to the farming community under various heads. Farming communities should collectively, rather than individually, access this money, except in clear cases where an identifiable farmer's variety has been used. Farmers should have the right to decide how this money that they have earned will be spent. The use of the money should not be restricted to conservation or for maintaining ex situ collections. The method for fixing and realizing benefit sharing should be made simpler and easier to implement. One approach to fixing benefit sharing could be a system of lump-sum payments, based for example on (projected) volume of seed sale.
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CHAPTER- V
5.1 Implications Of WTO for Indian Agriculture:
The Case Of Intellectual Property Rights And Emerging Biosafety Protocol
Globalization in trade and investment through harmonization of national laws, particularly dealing with intellectual property rights is one of the major impacts of ATT/WTO. The contribution of knowledge as a factor of production is being increasingly given central importance in economic development. The tension between public need and private control that will mount the first challenge. The conflict between chemical intensive agriculture (despite declining productivity of inputs) and the nonchemical sustainable technological innovations generated by farmers as well as firms (national or international) will pose second challenge. The increasing trend towards larger areas under fewer varieties and the need for food security through diversified biological systems will be the third source of conflicts. Production, protection, commercialization and incorporation of intellectual property in development of national developmental strategies, will be crucial in defining the role India will play in world markets on one hand and overcoming deprivation and hunger with in the country on the other.
The strategy proposed is aimed at making Indian agriculture not only globally more competitive but also domestically more progressive by using knowledge as a strategic resource so that agriculture sustains livelihoods of millions of households dependent upon it in an environmentally sustainable manner. The major contention is that India should not view the challenges posed by WTO as if it will remain always an importing country and that it has no substantive intellectual property to offer to world market. There must be a registration system for encouraging protection of local land races and incentive system must be generated for in situ conservation. The provision of TRIPs need to be strengthened to include (a) micro organisms but exclude life forms, b) registration system of grassroots innovations (unlike utility patent system, this registration system should be like product patent for ten years just as proposed in Australian Innovation patent system) (c) widespread patent search facility for educational and entrepreneurial networks and centers so that quality of research and education can be competitive, (d) just as a global registry has been proposed for wines under TRIPS, India must insist that similar global registry must exist for green small innovations too. This will help link innovation, investment and enterprise each vector of which may be in different parts of the world. The global trade regime has to deal with several related issues in regard to biosafety such as ability of the importing country to assess the risks and deal with them, regulations for labeling or GMO products so that consumers can make informed choice, restrict GMOs which may pose hazard to the very viability of the food security, for example, through terminator gene technology, etc. Prior informed consent of farmers must be ensured while pursuing on farm trials on transgenic. The reciprocity in effective protection must exist i.e., (a) those who access farmers varieties must disclose, acknowledge and undertake to provide reasonable share of their revenue with germplasm providers/conservators through appropriate institutions, and (b) PVP/patent claimant should unambiguously prove that the materials in which improvements have been made, had been obtained lawfully and rightfully.
5.2 Situation
Globalization in trade and investment through harmonization of national laws, particularly dealing with intellectual property rights is one of the major impacts of GATT/WTO. The contribution of knowledge as a factor of production is being increasingly given central importance in economic development. The management of knowledge not in just in farms and firms but also in non-farm sector will become very crucial in coming years. The intellectual property rights deal with the reciprocity in rights and responsibilities of inventors and society at large. In lieu of the disclosure of the patented innovation or invention, the society agrees to recognize the right of inventor to exclude others not authorized, from commercial exploitation of the invention. It is a kind of social contract between society and the inventor. Society gains by getting access to the inventive process and product, which can be used by other inventors for making improvements as well as developing substantive new innovations. Inventor benefits by having incentive to invest himself/herself or assign it to some one else interested in commercial exploitation of the invention. If others could easily copy the invention as often happens in the case of process patents, then investors will not make major investments and inventors will have no incentive to disclose. The plants and animals were kept out of the purview of patents when the concept was developed initially. However, in fifties, discussion started on finding out ways in which more plant varieties could be developed and breeders could be given incentives to innovate and disclose the improvements.
The sue generis system created for protection of new varieties of plants by International Convention for Protection of New Varieties of Plants (UPOV) was a response to basically three factors (UPOV 1998), a) reluctance in fifties to the application of patent systems to agriculture and to the plant breeding in particular, (b) realization that a system was needed to protect plant varieties somehow to also safeguard the interests of the breeders. And (c) the conditions of patentability might not be appropriate for the plant varieties. Subsequently, the 1961 Act was modified in the 1978 which was further modified in 1991. After ratification of 1991 Act by more than six countries, it has come into force now.
While TRIPS (Trade-related Aspects of Intellectual Property Rights agreement) does not explicitly state that sui generis system should be compatible with provisions of International Union of Plant Variety (UPOV), it is implied that such should be the case. Earlier, the option for the countries joining UPOV was to have their national laws compatible with UPOV 1978. However, after coming into force of UPOV 91, such an option does not exist for countries, which have not sent their draft bill to UPOV for reference. Although, this is a contentious issue. Many countries including India have argued that providing “effective” plant variety protection through ‘sue generis’ system need to mean parity with upov 91. Increasing use of biotechnology in producing transgenic crop varieties and genetically modified organisms (GMOS) also requires development of biosafety norms to regulate trade in such crops, animals and products. As much as sixty per cent of the marketed products in some commodities have biotechnological inputs in some of the developed countries. A significant part of it involves transgenic crops particularly in USA.
Indian government has not yet enacted either a sui generis system or a Plant Variety Act which is in conformity with WTO provisions.ii However, author has had access to the new Plant Variety and Farmers’ Rights Bill which is quite unique in many respects and has been summarized in third part.
It is author’s contention that we cannot hope to make our agriculture self-reliant if the public sector agricultural research remains totally under the stranglehold of government. It should have autonomy and be much more accountable to various user groups. Such will continue to be the case till R&D institutions primarily rely on government for funds. It is obvious that public sector R&D has played a very crucial role in agricultural growth in the country. The tragedy is that even well off beneficiaries of this growth did not share any part of their economic gains with the R&D institutions. So much so that Central and state seed corporations never paid any revenue to the research institutes and universities. WTO implications will force agricultural R&D and trade sectors to become more efficient and competitive. Intellectual property rights protection for public and private sector scientists as well as institutions is likely to contribute to this process.
This paper deals with the experience of different countries which have enacted plant variety protection Acts and have tried to cope with biosafety norms as a consequence of increasing role of biotechnology in development and transfer of agricultural products, seeds, animal breeds. The lessons for Indian policy and options for future negotiations are mentioned in the end.
The contribution of knowledge as a factor of production is beginning to acquire dominant role in future trade, investment and technological change in agriculture as well as other sectors of economy. The management of knowledge not just in farms and firms but also in non-farm sector will, thus, become crucial. But the production and reproduction of knowledge will no more be governed by the conventional norms of public space, scrutiny and substantive needs. It is the tension between public need and private control that will mount the first challenge. The conflict between chemical intensive agriculture (despite declining productivity of inputs) and the nonchemical sustainable technological innovations generated by farmers as well as firms (national or international) will pose second challenge. The increasing trend towards larger areas under fewer varieties and the need for food security through diversified biological systems will be the third source of conflicts.
The strategy proposed is aimed at making Indian agriculture not only globally more competitive but also domestically more progressive by using knowledge as a strategic resource so that agriculture sustains livelihoods of millions of households dependent upon it in an environmentally sustainable manner. The major contention is that India should not view the challenges posed by WTO as if it will remain always an importing country and that it has no substantive intellectual property to offer to world market. The critical NGOs and other colleagues who criticize the concept of intellectual property rights have perhaps not been exposed to the inventive potential of Indian society. Honey Bee network has demonstrated over last ten years through its data base having about ten thousand entries of innovations and outstanding examples of traditional knowledge, innovations and practices, the immense contribution that grassroots innovators can make towards this cause. Add to this the potential that Indian scientists have and one would know why TRIPs under WTO can indeed make R and D in formal and informal sector as the pivot of socio-economic transformation of our society. It is and Farmers’ Rights Bill which is quite unique in many respects and has been summarized in third part.
It is author’s contention that we cannot hope to make our agriculture self reliant if the public sector agricultural research remains totally under the stranglehold of government. It should have autonomy and be much more accountable to various user groups. Such will continue to be the case till R&D institutions primarily rely on government for funds. It is obvious that public sector R&D has played a very crucial role in agricultural growth in the country. The tragedy is that even well off beneficiaries of this growth did not share any part of their economic gains with the R&D institutions. So much so that Central and state seed corporations never paid any revenue to the research institutes and universities. WTO implications will force agricultural R&D and trade sectors to become more efficient and competitive. Intellectual property rights protection for public and private sector scientists as well as institutions is likely to contribute to this process. This paper deals with the experience of different countries which have enacted plant variety protection Acts and have tried to cope with biosafety norms as a consequence of increasing role of biotechnology in development and transfer of agricultural products, seeds, animal breeds. The lessons for Indian policy and options for future negotiations are mentioned in the end.
5.3 Trade-related Aspects of Intellectual Property Rights System (TRIPS)
The Indian patent law is under review for bringing it in conformity with WTO provisions. A particular part of Article 27 mentioned below has direct implications for agriculture. Even the product patent aspect will have implications for agriculture by way of protection to the inventors of new agricultural products. Since processes are easy to copy, product patents are necessary.
The provision of TRIPs need to be strengthened to include (a) micro organisms but exclude life forms, b) registration system of grassroots innovations (unlike utility patent system, this registration system should be like product patent for ten years just as Australian innovation system has been proposed, (c) widespread patent search facility for educational and entrepreneurial networks and centers so that quality of research and education can be competitive, (d) just as a global registry has been proposed for wines under TRIPS, India must insist that similar global registry must exist for green small innovations too. This will help link innovation, investment and enterprise each vector of which may be in different parts of the world. More on that later.
A review of clause (b) of Para 3 of Article 27 of the TRIPS Agreement is due in the year 1999. This part of the Article states as under: - “Members may also exclude from patentability:
(b) Plants and animals other than microorganisms, 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 plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the entry into force of the WTO Agreement.”
5. 4 Three permissible exceptions to the basic rule on patentability. :
i. inventions contrary to order public or morality. This explicitly includes inventions dangerous to human, animal or plant life or health or seriously prejudicial to the environment. The use of this exception is subject to the condition that the commercial exploitation of the invention must also be prevented and this prevention must be necessary for the protection of ordre public or morality.
ii. diagnostic, therapeutic and surgical methods for the treatment of humans or animals.
iii. plants and animals other than microorganisms and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, any country excluding plant varieties from patent protection must provide an effective sui generis system of protection. The knowledge and activity of breeders is sought to be protected more vigorously. It has to do so by protecting the public sector research and development (much of which unfortunately has become weak over the years) but also create environment for promoting (a) farmer led research, (b) farmer and scientist partnership in research, and (c) private and public sector collaboration in research.
5.5 Methodology:
The Plant Variety Acts of thirty five countries excluding India, both developing and developed have been reviewed. In addition various debates have been covered to (a) identify the unique features evolved by different countries to protect the intellectual property produced in their own country, (b) mobilize the useful technologies from abroad and (c) protect their rights in other countries. While biosafety is only one sub set of environmental regulations, a very brief review of some of the environmentally induced disputes in international trade in agriculture is presented so as to draw lessons for trade policy in agriculture. However, the detailed implications are drawn only for biosafety which has the potential to influence biodiversity and genetic wealth adversely if not regulated adequately. To the extent WTO requires national treatment for global trading partners, it is important to recognize that regulations for international exporters of transgenic crop or animal technologies to India will have to be applied to domestic biotechnological companies and research groups also. Labeling of food or food products based on output of transgenic crops is becoming a very serious issue in Europe and USA is also likely to accept this demand of EU. The import of unlabelled transgenic crop based food items is either completely banned or strongly restricted in EU as well as Japan. US Secretary of Agriculture, The possibility of bridging the gap in global and national domestic technological competence is smallest in case of biotechnology compared to all other fields of industrial technologies.
5.6 Some of the issues that need to be addressed in future are:
a) The rights of local communities and farmer breeders in land races as well as recent improvements in these land races, could be a major source of stability in food supply in the wake of fluctuating climate and other environmental conditions. The incentives for decentralized breeding by farmers on their own, with or without partnership of scientists will help make the goal of generating diversity in genetic base a realizable goal. A registration system of land races will have to be developed to recognize the community rights in these races. Indian Plant Variety and Farmers’ Right Bill (henceforth, Indian PFRB), makes a very bold attempt in this direction which has not been tried by any other country whose PVP bills has been reviewed here.
b) Monetary as well as non-monetary incentives for individuals as well as Communities as advocated by Honey Bee network and SRISTI for last ten years are essential if the asymmetry in the rights of institutional and informal breeders has to be reduced and eventually eliminated. Without wider participation in production of intellectual property such as plant varieties, a diverse country of India's size can not grow in a sustainable manner in future. France offers an interesting model in which small farmers' co-operatives dominate the seed industry instead of large multinational corporations. The preference for taste by consumers can be harnessed for promoting decentralized co-operative and small scale entrepreneur based seed industry.
The public sector research institutions will have to provide hand holding support to such co-operatives and entrepreneurs. There is no policy for encouraging small scale breeders. Recently when a farmer bred variety of groundnut, 'morla' (developed by Thakarshee bhai) was taken up by ICAR's AICRIP on ground nut, the NGO SRISTI had to arrange the seed required for multi location trials. Despite good intentions, the scientists concerned had no provision to pay for seeds of such small farmer breeders. This incidentally was the first time in last fifty years, that a farmer bred variety had been taken up for All India trials. Such cases must multiply and soon.
c) There must be a registration system for encouraging protection of local land races and incentive system must be generated for in situ conservation. ten per cent of area under threatened land races may receive incentive price computed by productivity multiplied by price to equal similar productivity price equivalent of modern variety in that area. Thus a farmer selected through random lottery will be eligible for such an incentive only if he/she had grown land race. A national register must also be developed for other herbal innovations. The Indian PFRB provides for registration of not only extant varieties but also farmers’ land races by communities or NGOs.
d) National database on local varieties with systematic documentation of local knowledge of women and men is very necessary. For making our breeding system responsive to global demands, we must know which land races can offer genes for which kind of characters. Only agronomic evaluation is not sufficient. The local knowledge of farmers’ families is very valuable but almost completely absent from pass port sheets of ex situ gene banks. This is a task, which will pay dividend quickly if given high level attention.
e) We have to create a Knowledge Network, which will connect creative farmers, scientists and policy makers in real time so that macro policy can be responsive to micro level innovations, and other urges.
f) Sustainable Technologies: The Honey Bee data base demonstrates that productivity can be increased without impairing the environment and quality of outputs. Our exports are getting affected in some of the sectors by pesticides residues. National technology mission on non chemical technology development is must and this should not restrict its scope to innovations by formal centers of research alone. Informal innovations should also get the same attention.
g) Demand for organic food and spices is increasing world over but we still do not have decentralized arrangements for certification by NGOs, and public sector research organization (exceptions apart).
h) We have to strengthen phytosanitory control systems to prevent import of diseases, pests, weeds etc., in the wake of liberalized import of seeds material from abroad. Training of customs officials in this regard is necessary. They should also be trained to prevent clandestine export of restricted seed material out of the country. The export of soils samples without proper authorization should also be prevented since patents already exist on microorganisms taken from soil from Gujarat and many other regions of the country.
5.7 The Biosafety Regulations
The biosafety regulations focus on the direct and indirect consequences of introducing genetically modified organisms (GMOs) or living modified organisms (LMOs) into the environment such as:
a) What is the probability that the characteristics of the GMO may be transferred to the wild relatives of the species?
b) To what extent the toxin producing or other genes introduced into the organism can be transferred to other organisms even unrelated.
c) Whether consumption of GMO can cause any allergy or other health hazards?
d) Whether the introduction of GMO can create new weeds, affect biological vectors or disrupt the co system?
The global trade regime has to deal with several related issues in above regard such as ability of the host or importing country to assess the risks and deal with them, regulations for labeling or GMO products so that consumers can make informed choice, restrict GMOs which may pose hazard to the very viability of the food security, for example, through terminator gene technology, etc.
5.8 Environmental Hazards In Transgenic Crops:
Modes Of Gene Escape In Rapeseed
Genes of B. napus may be transferred out of the test area by seed or by pollen. Seed is capable of germinating in subsequent seasons; therefore, some means of collecting all seed, preventing bird or other animal movement, and ensuring that in subsequent seasons transgenic plants derived from any shattering loss are destroyed.
Although the survival and maintenance of hybrids is relatively unlikely, plants receptive to B. napus pollen should not be in the area. Specifically, B. napus plants should not be within bee pollination range, and B. rapa or B. oleracea plants in flower should not be within the area during the period of flowering of the transgenic crop.
5.9 Modes of Gene Escape in Corn
Genes of corn may escape from the test plot in two ways. The first is by pollen transfer. The second is by movement of the grains. If viable pollen of the transgenic plants can be transferred by wind to any receptive corn stigma within the 30 minute period of pollen viability, an escape of genetic material
could take place. This potential transfer becomes more unlikely as distance increases from the transgenic plants, and from a practical standpoint becomes increasingly unlikely at distances much beyond the foundation seed isolation distance of 660 feet. Temporal isolation would further reduce the likelihood of effective pollination and fertilization. In addition, any physical impediment to this movement, such as effective detasseling or bagging, would completely eliminate the possibility of gene escape by way of pollen.
To prevent grain from remaining in the field or otherwise escaping, all ears would have to be collected or otherwise destroyed. To ensure that no grain escaped harvest, the field would have to be monitored for volunteer corn plants in the following season.
5.10 Modes of Gene Escape in Cotton
Genetic material of G. hirsute may escape from a test area by vegetative material, by seed, or by pollen. Propagation by vegetative material is not a common method of reproduction of cotton. Physical safeguards that inhibit the movement of vegetative material from the area should be adequate to prevent gene movement by this means.
Movement of seed from the test area can likewise be inhibited by adequate physical safeguards.
Movement of genetic material by pollen is possible only to those plants with the proper chromosomal type, in this instance only to those allotetraploids with AADD genomes. In the United States, this would only include G. hirsutum, G. barbadense,and G. tomentosum. Gossypium thurberi, the native diploid from Arizona with a DD genome, is not a suitable recipient. Movement to G. hirsutum and G. barbadense is possible if suitable insect pollinators are present, and if there is a short distance from transgenic
plants to recipient plants. Physical barriers, intermediate pollinator-attractive plants, andother temporal or biological impediments would reduce the potential for pollen movement.
Movement of genetic material to G. tomentosum is more unknown. The plants are chromosomally compatible with G. hirsutum, but there is some doubt as to the possibility for pollination. The flowers of G. tomentosum seem to be pollinated by moths, not bees. And they are receptive at night, not in the day. Both these factors would seem to minimise the possibility of cross-pollination. However, Fryxell(1979) reports that G. tomentosum may be losing its genetic identity from introgression hybridization of cultivated cottons by unknown means.
People are worried about two kinds of risks from genetically modified organisms: risks to human health and risks to the environment including all of the animals, plants and micro-organisms that inhabit the earth.
Risks to human health from micro-organisms used in contained industrial production laboratories are generally considered low. Few of the microorganisms used in research or industry are pathogenic to humans. However, there is a risk that undesirable environmental effects could be caused by novel organisms released into the environment.
Some of these effects may be difficult to predict accurately or may only be apparent inthe longer term, but all the available knowledge must be used to enable us to take adequate precautions.
5.11 Risks for the Environment by the GMOs
1. Excessive increase in the numbers of organisms released to the environment, and their establishment
2. Direct but unanticipated effects on non-target species - infectivity, pathogen city, predation on other micro-organisms, plants and animals, or shifts in host range
3. Negative influence on the interactions among species predators, prey, hosts, symbioses, etc.
4. Unanticipated involvement in biogeochemical cycles nitrogen-fixation, mineral cycling etc.
5. Transfer of undesired characteristics to other organisms.
5.12 These depend on a series of events:
1.Incorporation of a gene for a particular trait into an organism
2.Deliberate or accidental release in the environment
3.Survival and multiplication of the organism in the environment
4.Contact with species or ecosystems which tan be injured by the organism
5.Harm to the species or ecosystems. Notwithstanding the claims about safety of
food produced through transgenic crops, the protest movements around the world are calling for change. In USA last year, it is estimated that 40 per
cent of Soya and 30 per cent of corn was genetically engineered. FDA’s claims that food produced through such crops was no different from the rest is being questioned through law suits in USA. It is extremely necessary that India takes up systematic research programs to assess these contentious issues. To see close connection that exists between biosafety, transgenic and intellectual property rights, a news from Nature will help. Gregory Aharonian, (patentnews@world.std.com, July 15, 1999) quotes a letter in Nature (June 5, 1999) providing concentration of plant DNA patents:
A group in London reports that from 1980 to 1996 about 600 plant
DNA sequence patents were applied for, about half granted. About half were filed by multinationals, the largest number applied for by Monsanto with 69 applications, followed by Zeneca and Novartis. About fifteen percent were owned by the US government. Maize was the mostly heavily patented, and the genes involved dealt with nutrition (20%), pathogen resistance (20%) and gene regulation (18%).
5.13 Highlights of Indian Plant Variety and Farmers’ Right Bill, 1999
a) The Indian government has preferred to use sue generis system instead of patents because of three major advantages: a) flexibility, b) better protection of farmers’ rights, and c) stronger researchers’ exemption.
b) The Indian Draft Bill on Plant Variety and Farmers’ Rights provides for the option of compulsory licensing when reasonable quantity of seed or reproductive material of protected variety is not made available in the country.
c) Government has the power to determine which genre and species would be covered under the Plant Variety Protection.
d) In case of any disputes regarding orders of Indian PVFRB Authority, the high courts will have the jurisdiction for resolving any complaints.
e) Clause 25 of the Bill has a provision for non-registration of the varieties which are injurious to the public morality or health as in the case of `terminator gene’.
f) There is a provision of setting up gene fund, which will determine the share of benefits to be given to farmers or other breeders and also decide the eligibility for getting benefits, whether benefits are given one time or on recurrent basis.
g) There is a provision for registration of extant varieties, i.e. the ones notified under Seed Act, 1966 released by the Central Seed Committee. The provision also exists for preservation jointly or severally of wild species or a traditional variety with or without added value and which has economic use.
h) The farmers rights include the right to
I) produce his crop,
ii) use product of crop as seeds for producing further crop,
iii) sell product of crop except its sale exposing it as a seed.
iv) The new varieties are supposed to be those varieties, which have not been grown earlier than one year outside India and in case of trees and vines not earlier than six years. In all other cases, the limit is four years.
j) The distinctiveness of the variety is defined by its distinguish ability by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of application. Failure of an application for the grant of breeders right to a new variety or its derivatives shall deemed to render that variety as a matter of common knowledge.
k) The applicant is required to provide complete passport data of the parent line from which new variety or its propagating material has been developed.
l) The duration of protection is 18 years for trees and vines and 15 years in the case of extant varieties and 15 years for other crops except extant varieties in which 15 years will be calculated from the date of notification by the government under the Seed Act, 1966 or from the date of release or date of registration as a farmers’ variety whichever is earlier. The validity of farmers varieties particularly land races should actually be at least be 99 years instead of only 15 years. This clause needs to be modified in the Indian bill.
m) Gene Fund: Breeder will deposit in gene fund the amount determined by the authority. In case of default, this amount can be recovered as an arrear of land revenue.
n) The breeder will be required to deposit appropriate quantity of the propagating material.
o) Researchers Right: Authorization of breeder or plant variety protection holder is necessary when repeated use of parental lines of a variety is required. Otherwise nothing will prevent any researcher from using a protected variety as a research material.
p) Farmers right: Farmers has the right to save, use, exchange, share or sell his farm produce of a protected variety except when covered by contractual market arrangement.
q) Rights of communities: People of any community or an NGO representing them can represent the contribution of people to a variety granted protection under the Act. The authority would very such claims. And if found valid, compensation would be paid to NGO/people who submit claims of people against which existing breeder/s enjoying protection would be heard and given notice. The compensation granted by the breeder will be deposited in the gene fund. The NGO or the community shall withdraw the compensation even if such a fund has not been deposited by the breeder concerned in the gene fund. The compensation shall be recovered from the breeder in case of default as an arrear of land revenue. r) National Gene Fund: The functions of national gene fund are, I) benefits sharing in the prescribed manner, ii) royalty paid at such rate as may be prescribed by the central government on the sale price of the seed or propagating material of a registered variety, iii) contribution from national or international organizations can be received in the gene fund.
s) All plants under the order Planate are included for protection except micro organisms.
As mentioned earlier, the Indian PVFRB has many unique features such as opportunity for registration of extant varieties, registration of farmer’s traditional varieties by communities of NGOs on their behalf, constitution of National Gene Fund though it aims to collect revenue mainly from seed companies only- a point that we will like to critique.
5.14 Findings and recommendations for change
1. Definition of variety : A variety must fulfil three criteria to be called as a particular variety,
(a) it should be possible to describe the member plants through a common
descriptor,
(b) a distinguishing feature or features by which one can distinguish one variety from another criteria, i.e., distinctiveness, uniformity, and stability (DUS) corresponding to point `b’, ‘a’ and ‘c’ respectively mentioned above. The requirement of DUS prevents buffering population of land races, heterogeneous in nature to be protected. One way to circumvent this constraint will be to require the condition of stability be met over four or five generations rather than in every generation. Multi line varieties developed for rained regions would have to have the capability to deal with too much rain or too little, likewise early rain versus little delayed. The definition of uniformity and stability would thus require modification. The narrowness of genetic base has already been recognized a major threat to food security in most countries. The DUS conditions will only make the situation worse.
The definition of the plant also varies a great deal from country to country. Australia includes in "plant” all fungi and algae but does not include bacteria, bactericides, mycroplasmas, viruses, and acteriophages. Whereas New Zealand includes fungus but excludes alga or bacterium. India will have to decide the spectrum of protection it needs to provide. In my view, it is better to accept Australian definition since it is closer to the accepted scientific perspective.
2. The inclusion of `discovered wild plants’ in the definition of variety by China, and France which can be protected provided these had DUS property, offers an interesting possibility. This implies that a wild plant, which has just been characterized as DUS such as medicinal, plants, or even crop or horticultural plants can be covered under protection and entitle one to
breeder’s privileges. This is akin to the privilege provided in the patent act for microbial organisms found in nature but isolated and characterized to become eligible for protection. The exclusion norms for product of nature stand thus modified. The issues are more pragmatic than moral because domestication process in the long past had generated the land races in the first place. Similar domestication must continue now to meet future food needs
and reduce dependence on a very narrow range of food corps as at present. Whether such an activity should be rewarded or not is the issue to be elided. If it is rewarded, it is likely to take place more aggressively otherwise it might suffer. I have no doubt that only monetary rewards are not the most potent force in generating human motivation for a desired action. However, it is also true local communities and individual farmers only should not be
expected to contribute on voluntary basis when every other section of society clamors for monetary gains.
3. Under the UPOV 1991, the varieties, which are different only in one or very few characteristic compared to the existing protected varieties, are called as `essentially derived varieties (EDV)'. This is done to avoid cosmetic breeding by which someone can usurp a breeder's right by merely changing color or shape of a leaf or any other non-economic part of a plant. In the case of EDV, the permission of the breeder having the rights to the parent material is necessary. Some activists have opposed this provision suggesting that it inhibits
the breeding process - a contention which is not true. It merely makes the rights of those who make substantive investment in research evident and more significant. In Italy, PVP act requires that if repeated use of an existing variety is required for developing protected variety, then that variety should also be disclosed while filing PVP application. It is a very useful clause and has been incorporated in Indian PVFRB also.
4. Just as the rights of those breeders who make selections in the locally existing agro biodiversity are protected under the UPOV Convention, the rights of the farmers who have breed and selected the local land races should also be protected. FAO undertaking on Farmers' Rights has been on the table for more than a decade without any funds flowing into the kitty. One reason could have been that no developing country has cared to establish such funds even nationally. The argument cannot be that only the international (read western) corporations or institutions need to pay into this or any other such fund while the seed companies and beneficiaries of green revolution in developing countries need to have no reciprocity towards the conservators of land races. I have argued that a one to two percent cuss on the transactions in market yards in green revolution regions and cash crops should be used for generating funds for conservation and recognition of farmer’s varieties. This fund can also be used for providing incentive price to ten per cent of the conservators of land races selected through a lottery every year. This price can be determined by finding out the difference between the price and yield of a land race and a high yielding variety suitable for the local area. Since only those farmers will be eligible to participate in the scheme who have grown land races, the leakage of the benefits can be avoided. This scheme can be started for those land races which are under threat of extinction. This will promote in-situ conservation and also provide incentives for agro biodiversity to be maintained. The cost of the seed should not increase (as it is likely to under current arrangement) such that already low replacement ratios further decline. Seed industry should certainly be required to make contribution to gene fund for ex situ conservation and to some extent for in situ conservation.
However, the major contribution should be through the imposition of a small cuss of fifty paisa per quintal on market arrivals in green revolution high growth districts. This cuss fund should be used exclusively through Gene Fund for providing incentives to small farmers growing landraces in marginal environments.
5. The public sector and private sector R&D institutions should also be encouraged to set up their own Gene Funds from the royalties of the varieties licensed by them to the seed companies. The brand equity of public sector R&D institutions should be protected through trade mark protection and royalties on the same should be charged, for instance, to very user of ‘Pusa’ brand name. Public sector R&D institutions should be encouraged to set up joint sector companies with equity participation from the workers, scientists and other investors. The protection of intellectual property rights will require appropriate institutional innovations for enforcing the same. Without such a protection, they will not be able to set up corporate gene funds.
6. The coverage of protection under UPOV 1978 Act was minimum of five plant genera or species after joining and twenty four after eight years. In UPOV 1991 a minimum of five on joining and must protect all genera and species after ten years. India may have to consider a middle ground. The basic purpose of including any genera or species is to recognize and promote the research and development in that species. It is always possible for a country to refuse protection to any variety if it violates moral order or public safety.
7. The inclusion of `conditioning for the purpose of propagation' in Article 14(1)(a) of the 1991 Act does extend the right of the breeder. However, both the conditioning and stocking are processes unrelated to the basic genetic property of the organism. Only in some cases can conditioning be closely related to the propagability of a variety (particularly in some of the horticultural crops or in seeds which have high dormancy and where dormancy has to be
broken by some type of conditioning). Indian law can exclude these provisions and argue that breeders' rights will still be enforceable.
8. Another extension under the breeders' right provided in the UPOV 1991 is under Article 14(2) to cover harvested material. Thus if a breeder has not exercised his rights to propagating material or a standing crop, his rights don't cease to operate once the crop is harvested. This makes sense from the point of view of enforcement of breeders' rights on domestic and imported harvested material. Therefore, if somebody grows seed of a particular protected variety seed outside the country and then imports that seed, he will still be obliged to take the permission of the breeder and/or pay royalty to him.
9. The period of protection varies from fifteen to twenty years for crops and eighteen to twenty five years for asexually propagated horticultural crops. We may follow twenty and twenty five years as the duration for the purpose.
10. The farmers' privileges are left to the discretion of each country. Whether farmers can be allowed to produce seed for use on their own farm in the next growing season is a subject that is covered by Art. 15(2) which requires the rights of the farmers to be, `within reasonable limits and subject to the safeguarding of the legitimate interest of the breeder'. To all farmers having holdings less than 20 or 30 hectares, the privilege must extend without any restriction. However, holdings larger than that also may not be required to pay royalty to the breeder for sale of seed across the fence without using brand name. In the Plant Variety Act of Zimbabwe, there is a provision that a farmer cultivating less than ten hectares of land will not infringe the breeder's right if he used the saved seed from previous cycle of protected variety for propagating purposes on the said land or if he has modified the variety to be called as essentially derived variety. By implication, the farmers having larger holdings will not have this privilege. The Plant Variety Act of Venezuela provides for “farmer's privileges” in Art.26, “anyone who stores and sows for his own use, or sells as a raw material or food, the product of his cultivation of the protected variety shall not be thereby infringing the breeder’s right. This Article shall not apply to the commercial use of multiplication, reproductive or propagating material, including whole plants and parts of plants of fruit, ornamental and forest species”. The proposed Indian Bill permits farmers to retain, exchange and ell seed without using brand name but without any quantity restrictions. This will permit the large estates and big commercial farmers to escape the responsibility of sharing the royalty with the breeder. Alternatively the seed companies may increase the price of the seed to recover their costs within one cycle of sale and in the process exclude small growers from the access to seed. Still another implication could be that private seed companies might not invest resources for improving self-pollinated crops because of the above constraints. A society has to decide whether the privileges to all classes and in equal measure will promote the long term interest of productivity and incentives for R&D.
11. To prevent biotechnologically produced varieties to take away the benefits of conventionally bred varieties by transferring one or a few genes into or from the same, the concept of essentially derived varieties has been developed. However, EDV does not deal with incorporation of gene from a protected variety into an unprotected variety. The fact that conventional breeding by farmers or plant breeders made the expression of a particular critical gene possible has to be recognized. Therefore, the claimant for plant variety protection for a biotechnologically produced variety should disclose the source parents and must agree to contribute part of the gain with the breeders of the source variety.
12. Under the UPOV 1991 a provisional protection is mandatory. It enables a breeder to benefit from the commercialization of his variety soon after filing of the application. However, in the case of patent, the protection is been available only when the patent has been sealed. We should evaluate whether India will benefit by providing mandatory protection from the date of filing application as called for in UPOV 1991. The advantage is that it helps in providing access to farmers to a new technology quickly. The harm is that for transgenic or other such varieties which may need to be evaluated for their environmental and other impacts, a quick protection may lead to avoidable hazards.
13. The sui generis system is expected to provide effective protection for the plant varieties and, as in some countries, animal breeds. Majority of the countries who have enacted the Plant Variety Protection Laws after 1995 have tried to bring harmony with 1978 Act, except in few cases where provisions of 1991have been drawn upon. India may like to incorporate the provision for protection of animal breeds in a combined Plant Variety, Animal Breeds and
Farmers Right Act. Korea is one such country which gives the holder the right to produce, propagate, process, assign, lease, export, import or display the protected variety. This is a very sweeping range of rights. This is a very contentious issue and Indian position in the next round of discussion on TRIPS in 2000 should require discussion on (a) reciprocity in effective protection, i.e., those who access farmers’ varieties must disclose, acknowledge and undertake to provide reasonable share of their revenue with germplasm providers/conservators through appropriate institutions, (b) need for PVP/patent claimant to unambiguously prove that the materials in which improvements have been made, had been obtained lawfully and rightfully. The first requires compliance with international and national laws and second requires moral responsibility of not taking something (without due
consideration) from someone who is not aware of its true worth, (c) the breeders will be able to exclude large farmers and estate owners from the privilege of keeping one’s own seed for perpetual use, (d) the breeder should also undertake responsibility that the variety will demonstrate under farmers’ conditions, the characteristics that it is claimed to have. Breeder can specify the range of agro climatic and management conditions in which this will happen.
Failing in this, the breeders will be liable for prosecution. The effective protection has to be reciprocal, i.e., for the breeder as well as for the farmer.
There is an argument that farmers’ right to performance of seed as per the claim should be covered by Seed Act rather than by PVP Act. There is merit in this argument because Seed Act is aimed at dealing with provision of quality seeds in sufficient quantities to the farmer. The disadvantage is in the asymmetry in the rights of those who claim protection for certain attributes of a variety and those who buy these variety precisely for those characteristics.
14. Each of the word in Art.27.3b of TRIPS may come up for discussion during the next round of WTO meeting on the subject. The key words involved in this Article (Tanscy, 1999) are: plants, animals, micro organisms, essentially biological process, non-biological, macro biological, plant varieties, effective and sui generis system. The application of patent law is being demanded by developed countries to biological materials or processes such as DNA sequences that can express in the form of certain specific proteins, varieties, cells, hybrids and parent lines, transgenic plants, animals and processes. Correa (1998) fears that patenting of genes at the cell level might extend this scope of protection to all the plants which had the cell with the claimed genes. In fact this can happen even if only the genes are transferred without transferring the whole nuclei or cell. Some of the countries exclude materials found in nature, even if in isolated form. This will practically shut the door on the research to find microbial organisms performing specific functions. It is well known that a research to identify and isolate, purify and propagate the macro organisms of such kind is labor and capital intensive and therefore, benefits of such research may not flow to the countries where such protection is not available. Further, the growth of domestic biotechnology industry may also be hampered by such constraints. On the other hand, the current provisions of TRIPS in regard to micro organisms are totally unsatisfactory. For instance, several multi national companies have taken patents on antibiotics producing micro organisms isolated from soil samples taken from India and even acknowledged in the patent documents without any reciprocity for the country or the region from which these samples were taken. American Type Culture Collection Centre (ATCC) does not require the depositor of unique microbial culture to disclose –
(a) whether the material has been taken through prior informed consent,
(b) whether its attributes have been shared with the country/community from where it has been taken and
(c) whether it will be accessible to the researchers/communities for local applications in the providing region. India may like to pursue these ideas in the November 1999 round of discussion.
15. Several alternative drafts that have been circulated by voluntary organization to replace the Plant Variety Act provide useful areas for discussion. What is ignored is that in an international law rights are reciprocal, i.e., the protection that Indian breeders may need in other countries, they are required to provide to others in our own country. Further, having become member of WTO, we cannot choose to develop a system suitable for our purposes which other countries find inhibitory or restrictive or not sufficiently comprehensive. While certain provisions such as requirement of novelty and exclusion of “common knowledge” are certainly worth elaborating (Ravi Shankar, 1999). The common knowledge could be obtained from oral, documented practice or from reference collections from ex situ gene banks and of course, from the official register of varieties. One cannot restrict common knowledge only to the official register of varieties. This is not to deny the need for developing such a register in due course to incorporate whatever knowledge one can collect from the people about the local land races. The present situation of the descriptors maintained by most gene banks in agricultural universities and ICAR institutions is not very helpful. In most cases, the name of the villages from where the seed was collected is not given, much less the name of the farmer/s. We have not come across any case where farmers’ knowledge particularly that of women is given. The protection of such knowledge thus becomes difficult. The efforts by Honey Bee Network initiated ten years ago are an exception in this regard. Honey Bee Network has maintained with the help of Society for Research and Initiatives for Sustainable Technologies and Institutions, IIMA, other network members, editors of local language versions of Honey Bee newsletter (in Tamil, Gujarati, Hindi, Kannada, Telugu, http://csf.colorado.edu/sristi/), a national register of innovations, new varieties developed by the farmers recently as distinct from land races. It is our contention that those who plead for restricting breeders’ rights assume that commercially useful breeding can perhaps be done only by large corporations or international organization - a contention which we strongly dispute. We have been campaigning for protection of intellectual property rights of the innovators for last ten years much before anyone else had raised these issues from the farmers’ perspective. The key difference in our perspective and that of other NGOs (including the proposal of CoFaB, Convention of Farmers and Breeders) is that we believe in the need for stronger breeders right whether in the formal or informal sector. We also do not want to treat all the farmers alike. There is no reason why farmers particularly the bigger ones in green revolution region and other irrigated areas who have benefited from the blending of land races conserved in rained regions, should not share part of the benefits with the poor land race growing farmers in rained and mountain regions. These benefits will not flow unless the beneficiaries of the private and public sector breeding agree to pay a small contribution per hectare towards the conservation fund. This fund, as proposed earlier, will provide incentives to the grower of land races so that they do not stop growing land races either on account of continued deprivation, or on account of more remunerative alternatives. If growing land races for at least ten per cent of the farmers in every region is equally remunerative, land races will continue to be grown. Most opponents of Plant Variety Act and breeders rights have not explained the process and mechanism through which resources will be generated for providing incentives for inventive and innovative activities at farm, in firms and within India and abroad apart from in situ conservation. By reducing the period of protection these NGOs are essentially killing the goose, which may lay golden eggs if properly, regulated and nurtured. It is futile to expect governments in various developing countries to provide incentives for conservation to the growers of land races when most of them don’t have the money even to pay salary to their staff. If incentives are not right, technological flow and investments will not take place.
16. While we strongly support the need for evolving mechanisms for protecting community intellectual property rights, we strongly question the assumption that such rights only belong to communities and not to individuals. Honey Bee database demonstrates with more than ten thousand innovations the fact that there are individuals who excel and innovate in reproducing if not producing traditional knowledge and also who produce contemporary
innovations. The proposed Plant Variety and Animal Breed Act of India should provide incentives for individual farmers and local communities to register and seek protection on their results of innovative efforts. The high transaction costs involved in filing and obtaining the varietal and breed protection should be subsidized by the conservation fund as well as by Zilla Parishads and state legislatures
17. Trade and protected varieties and breeds particularly of transgenic nature will require strong biosafety regulations and implementation capacity of the regulations at various levels ranging from lab to the national level. It must however be remembered that much greater environmental damage takes place due to existing chemical pesticides compared to the possible damage that may be caused by a transgenic pest tolerant crop. For a small farmer would certainly be benefited if he or she can buy seeds of transgenic crop at reasonable rate rather than taking huge loans for buying pesticides than in some unfortunate cases, committing suicides. NO technological change is cost less. The most dramatic genetic erosion, i.e., loss of area under land races took place through the evolution and diffusion of high yielding varieties in what is called as green revolution. It should not be forgotten that this revolution was ushered in by public sector, research and extension institutions and private seed companies had practically no role. If one looks at the current seed protection policies and programmers of public sector seed corporations at national and state level, one would notice a very narrow varietal base. It is not suggested here that involvement of private sector will necessarily correct these problems. But it is obvious that private seed company can only survive if it can produce something which is distinctive, stable, and uniform and new the objectives of Plant Variety Act. Likewise, the public sector research institutions have not
been able to generate revenue from the sale of the seed that they develop to seed companies.
So much so, even the brand name of `Pusa’ seed which generates tremendous advantages for seed companies selling IARI Pusa seeds, is not registered under trade mark Act.
18. Geographical Indications must be protected as has become so apparent after Basmati case. Since registration of wines, as said earlier will come up for review in 2000 as a part of TRIPS review, India must take up the need for enveloping global registry for
(a) small green innovations ( such as herbal pesticides, growth regulators etc., developed by farmers, artisans, local communities ),
(b) geographical indications and
(c)land races so that improper grant of PVP or patents ( as was done in Australia for Indian chick pea germ plasma accessed from gene bank of ICRISAT) does not take place.
19. New uses of existing varieties/medicinal plants should be provided protection to give boost to herbal research in India and at the same time coded knowledge in ISM (Indian System of Medicines) must be excluded from PVP as well as patent protection.
20. To integrate implications CBD, International Undertaking for Plant Genetic resources of FAO, and Committee on Trade and Environment under WTO, A working group must be set up by GOI so that or efforts in each of this forum are co-ordinate and synergized which obviously is not the case at present.
The measure suggested in this note imply a three pronged strategy to deal with the implications of WTO on Indian agriculture from the perspective of intellectual property rights, particularly Plant Variety Act: (a) make domestic inventive and innovative activity more buoyant at grassroots as well as at formal institutional level, (b) provide protection to breeders within the country and outside to trigger two way technological flow from and to India and (c) ensure through viable and effective farmer privileges and biosafety regulations that environmental, economic ethical, and efficiency gains are not compromised while enabling trade and technology transfer.
One should not look at India remaining as only a technology recipient country. With all the inventive potential that exists at different levels, India should become a leader in provisions of sustainable technologies around the world.
5.16 Key issues for negotiation:
a. The need for explicit recognition of farmer’s privileges and farmer’s rights in the sui- generis system.
b. The need to harmonize the implications of CBD, CTE and international undertaking on plant genetic resources.
c. Every patent and plant protection authority should be required to ascertain from the applicant seeking plant variety protection or product patent on herbal or agricultural product that the raw material and information used in the innovation has been obtained lawfully, rightfully and through prior-informed consent of the providing country and the communities.
d. Just as there exists a proposal in TRIPS for negotiating global registry of wines, India should assert that a similar Global Registry for Grassroots Innovations is needed to include landraces, herbal products developed by small farmers alone or in collaboration with farmer scientists.
e. In view of the impact of lower tariffs on deforestation, the discussion on forest products should be carefully pursued. Since India is unlikely to become exporter of forest products and will remain a net importer, the lower tariff will only mean lesser cost of production by domestic industry based on imported raw material. India may consider this position while negotiating.
f. The environmental implications of international trade holds tremendous challenge in agriculture particularly in fishery sector where Indian exports may come up for restrictions due to unsafe handling of protected species, incidental catch of dolphins or other such issues. Since the conservation is a national priority, India should not oppose environmental regulations unless these were discriminatory vis-à-vis importing countries on standards or practices.
g. The insistence on DUS for varietal registration should be modified to include distinctive but heterogeneous and stable over three to four generations particularly in marginal environments. This will help in the development of varieties with buffering population and multi line composition for rained regions.
h. The exemption of small farmers from the restrictions to save, exchange or sell seed without using brand name may be incorporated in the revised Article 27(3b). Similarly, restrictions on varietal protection to varieties in common knowledge must be incorporated and penalty is introduced for such attempts.
i. While plant varieties have been covered by UPOV, animal breeds are not covered by any such protection. This may be taken up for negotiation.
j. The products of genetically engineered varieties must be compulsorily labeled to help consumer make informed choices. Further the biosafety implications must be also incorporated in the Plant Variety Act so that registration is under PVP is contingent on the satisfactory completion of biosafety and bioethical requirements.
k. The provision for community intellectual property rights may also be negotiated along with the need for low transaction cost system for small farmer innovator.
l. The new uses of an existing product are protected as use patents in USA but not in Europe. India may pursue this issue both domestically and internationally.
m. International registry proposed earlier should also include geographical indication for varieties.
India should not negotiate with the mindset of perpetual importer but should also think of export opportunities for technology in agricultural sector.
5.17 Implementation requirements
WTO members must ensure their laws meet the minimum standards laid down in the TRIPS Agreement but they can introduce tougher laws if they wish. They do not, however, all have to comply at the same time (Art 65):
• Developed countries had to implement TRIPS within one year of entry into force of the Agreement on 1 January 1995
• Developing countries had an extra four years-i.e. by 1 January 2000.
• Economies in transition (from centrally-planned to market economies) also had an extra four years-i.e. to 1 January 2000.
• Least developed countries have a 10 year transition period but they may apply for extensions to the (Art 66.1)
Newly acceding members of the WTO do not benefit from the transitional arrangements but must comply with the TRIPS obligations immediately they join the organization.
5.18 Four options are consistent with the obligations in Article 27.3(b):
1. To allow patents on everything.
2. To exclude plants, animals and essentially biological processes from patenting but not to exclude plant varieties from patentability.
3. To exclude plants, animals and essentially biological processes from patenting and to introduce a special sui generis right for the protection of plant varieties.
4. To exclude plants, animals and essentially biological processes from patenting but not plant varieties and to provide, in addition, for a sui generis right ('combination thereof').
5.19 Protection against bad seed
In providing a liability clause in the section on Farmers Rights, the farmer in principle is protected against the supply of spurious and/ or bad quality seed.
An important element of this sui generis law is that contrary to the exclusive IPR awarded to the individuals or corporations, it offers a special type of IPR protection and benefit sharing system. This is for the benefit of communities which have either collectively created and incrementally improved an innovation or provided prior art underlying a new innovation, either process or product. This community could be indigenous rural or tribal communities or farmers’ communities. In the case of community ownership no right of custodianship can be established or claimed by anyone in the community. This community rights assumes special significance in countries like India where agriculture has been practiced for thousands of years and the farmers have been predominantly responsible for conserving and enriching the bio-resources which constitutes the mainstay for national agriculture and food security.
5.20 Biodiversity and Farmers’ Rights
Another dimension to the IPR issue is the differences among countries in their national wealth on biodiversity, particularly the agro-biodiversity. Many countries of the South, including India are hotspots of biodiversity. This has largely influenced the history and system of agriculture in these countries, particularly the historic role of farmers in protecting, preserving and improving crop plants. It should not be forgotten that before the entry of organized and institutionalized scientific plant breeding, it was the farmer breeders who were responsible for creating the huge wealth of genetic variability in all crop plants and their wild relatives. They selected several varieties to address specific goals, different growing situations, and resistance to several pests and diseases.
In recognition of this fact, the FAO concluded that an international undertaking on farmers’ rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, particularly those at the centers of origin or diversity. These rights are vested with the international community, as the trustees for the present and future generations of farmers, for the purpose of ensuring full benefits to the farmers and supporting continuation of their contributions. One of the undertakings relevant to the present context is “to assist the farmers and farming communities in all regions of the world, but especially in the areas of origin/diversity of plant genetic resources, to participate fully in the benefits derived at present and in future, from the improved use of plant genetic resources through plant breeding and other scientific methods.
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CHAPTER-VI
GEOGRAPHICAL INDICATION
The protection based on Geographical Indication is to be found in Section 3 of TRIPS. Article 22 as also 23 and 24 deal with the protection of goods that are geographically indicated. So far the protection is offered only to wines and spirits. The efforts of India and developing countries to have the protection extended to other (agricultural) produce like Basmati rice and Darjeeling tea, have been opposed by the developed countries. So far they have managed to keep such agricultural products of interest to us, out of TRIPs protection.
6.1 The economic importance of 'Geographical Appelation'.
An American company Rice Tech has received a patent on Basmati rice. This is an infringement of India’s (and Pakistan's) geographically indicated rights. A special product like Basmati rice not only has a huge market in the UK, Europe, USA and West Asia; it also commands premium prices there. The current export of Basmati rice from India is to the tune of Rs. 1800 crores (Rs.1.8 billion). Pakistan exports somewhat more than that. The revenue from all the Basmati rice sold in the world market goes either to India or to Pakistan. That is the strong economic incentive to have a geographically protected name and not allow others to use it. As Rice Tech has attempted to do with Basmati.
There are other sought after products like Darjeeling tea , Alphorns mango and Shahi litchi. Apart from these agricultural products, there are herbal drugs and utraceuticals which are attracting increasing attention..and patents. India has now enacted legislation on Geographical Appellations that will claim protection for certain products that are clearly associated with the region. Its position in the WTO is to seek the expansion of scope for protecting products under the clause of Geographical Indication.
6.2 Patents on Micro Organisms
There was never any choice offered on this. The GATT negotiation ended with all member states accepting that they would provide patent protection for microorganisms.
Patents on microorganisms like bacteria, algae, fungus and virus will have far reaching consequences for developing societies. Self -reliant, sustainable agriculture will be adversely affected if our ability to develop biofertilisers and biopesticides, both based on micro organisms, will be hindered by foreign patents.
Bacterial strains like those which act on soil phosphates can make a tremendous difference to our agriculture. These bacteria break down inert soil phosphates to a form that plants can use as nutrients. Such bacterial use could potentially slash our phosphate fertilizer imports dramatically. We need to keep our avenues of research open.
Similarly strains of nitrogen fixing bacteria could significantly improve nitrogen uptake of plants and improve the protein content of our foods. This can be of immense significance in enhancing the quality of nutrition for poorer sections of society. The role of micro organisms in other areas like pharmaceuticals, bio-mining, energy etc. is well known. Self reliance in these sectors will also be affected by patents.
India could have tried to get out of the patent on micro organisms by invoking the clauses of order public and offence to prevailing norms of morality. Unfortunately it did not. . Patents on microorganisms have been introduced in the draft Patent Amendment Act which is awaiting approval by Parliament. Gene Campaign has made some recommendations to the Indian government to reduce the negative impact of microorganism patents. Primarily, the strategy is to keep the definition of microorganisms conservative and not agree to the inclusion of unconventional categories like genes and cells in the Indian legislation.
6.3 The impact of other IPR on Farmers’ Rights and Food Security
In addition to the forms of IPR described above, patents on genes and cells could lead to the increasing privatization of public goods and further marginalization of the farming communities of the world.
Patents on machines, tools and instruments of agriculture or software enriching agriculture could exclude the small farmers, forcing them to remain mere consumers of technologies over which they have no control and say.
Copyrights and trade secrets have been used to protect the identity of parent lines for making hybrids and for the nature of gene constructs used in transgenic research. Trademarks are already used to protect the much acclaimed and equally disputed Golden Rice and the tomato variety that would not rot, produced by Cal gene called Flavor Savr. And then we have the ultimate instrument of control, far exceeding systems of Intellectual
Property protection, the Terminator technology that will produce sterile seeds unless the company lets you have the magical key for making the seeds fertile. The terminator, if implemented would be the ultimate weapon in the arsenal of MNCs, to subjugate the farmer.
6.3 The case of Golden Rice
The vitamin A rich rice variety popularly called Golden Rice, is a good example to demonstrate how the new products emerging from genetic engineering are so tied up inpatients that they are to all intents and purposes, almost inaccessible to the farmer of developing countries. Although in this case, Astra-Zeneca (now Syngenta) stepped in to pay royalties on the roughly 70 patents involved in the making of Golden Rice, to allow its
use for humanitarian purposes, it remains to be seen how such cases are dealt with in the future. Here are the details of the Proprietary Property, or proprietary science, used in Golden Rice.
6.4 Technical Property
At least fifteen TP components went into the three different genetic constructs used in Golden Rice.
Depending on the country where the current form of Goiden RiceTM would be used up to 44patents could come into play. In the USA and most countries of the European Union, around 40 patents apply. In the 10 top rice producing countries, many fewer patents apply, namely: China (11), India (5), Indonesia (6), Bangladesh (0), Vietnam (9), Thailand (0),Myanmar (0), Japan (21), the Philippines (1) and Brazil (10). Similarly, in the top ten riceimporting countries, relatively few patents apply: Iran (0), Brazil (10), Nigeria (0), the Philippines (1), Iraq (0), Saudi Arabia (0), Malaysia (0), South Africa (5), Japan (21) and Cote d'lvoire (10).
6.5 Sui generis protection systems
The question of sui generis intellectual property right protection for plant varieties has become a matter of great importance following the adoption of the TRIPS Agreement. As a result of a negotiating compromise, TRIPS requires the introduction of plant variety protection in all member states but it does not impose the introduction of patents. Article 27.3.b specifically requires all member states to ‘provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The introduction of the sui generis concept reflects two broad elements. First, a number of countries in the North and the South rejected the compulsory introduction of plant patents. Second, negotiators did not manage to agree on one specific alternative to patents. As a result, TRIPS gives member states a wide margin of appreciation in determining how to implement their obligation to introduce plant variety protection.
The question of the introduction of plant variety protection is one that concerns mostly developing countries. Indeed, most developed countries had already introduced either plant patents or PBRs before the adoption of TRIPS. Developing countries that are member of WTO were left with the choice of either adopting the existing regime proposed in UPOV or to devise their own plant variety protection system adapted to their specific situation. A few countries have joined UPOV since 1994 but the majority has decided to adopt their own plant variety protection laws. In a number of cases, these laws draw directly and significantly from the UPOV regime and generally most existing proposals introduce PBRs. In cases where PBRs are adopted only as part of the regime, the regime is completed by the introduction of a form of farmers’ rights. In fact, existing sui generis options can be generally defined as regimes introducing both PBRs and farmers’ rights.
The prominence of the UPOV Convention in the debates concerning sui generis plant variety protection is in part linked to the fact that the interpretation of the concept of ‘effective’ sui generis system in Article 27.3.b TRIPS remains problematic. The only generally agreed upon interpretation is that UPOV is an effective suigeneris protection regime under TRIPS. This has led some countries like the member states of the African Intellectual Property Organization to simply adopt a regime modeled after UPOV-1991 and at the same time to commit themselves to join the UPOV Convention.
Some countries like India have decided to implement plant variety protection regimes which seek to provide protection to commercial plant breeders and to farmers. Thus, the Indian plant variety protection regime introduces both PBRs and farmers’ rights[14]. While a number of countries have attempted to draw up their own sui generis plant variety protection regimes, the member states of the Organization of African Unity have taken a unique initiative in adopting a Model Legislation for the Protection of the Rights of Local Communities, Farmers and Breeders, and for the Regulation of Access to Biological Resources. The model legislation is premised on the rejection of patents on life or the exclusive appropriation of any life form, including derivatives. Its provisions on access to biological resources make it clear that the recipients of biological resources or related knowledge cannot apply for any intellectual property right of exclusionary nature. The model legislation focuses mainly on the definition of the rights of communities, farmers and breeders. Community rights recognized include rights over their biological resources and the right to collectively benefit from their use, rights to their innovations, practices, knowledge and technology and the right to collectively benefit from their utilization. In practice, these rights allow communities the right to prohibit access to their resources and knowledge but only in cases where access would be detrimental to the integrity of their natural or cultural heritage . Further, the state is to ensure that at least fifty per cent of the benefits derived from the utilization of their resources or knowledge is channeled back to the communities. The rights of farmers are to a certain extent more precisely defined. These include the protection of their traditional knowledge relevant to plant and animal genetic resources, the right to an equitable share of benefits arising from the use of plant and animal genetic resources, the right to participate in decision making on matters related to the conservation and sustainable use of plant and animal genetic resources, the right to save, use, exchange and sell farm-saved seed or propagating material, and the right to use a commercial breeder's variety to develop other varieties. The breeders’ rights defined under the model legislation generally follow the definition given in the UPOV convention and the duration of the rights is modeled after UPOV 1991. One specificity of the plant breeders’ rights regime under the model legislation is the rather broad scope of the exemptions granted. Exemptions to the rights of breeders include the right to use a protected variety for purposes other than commerce, the right to sell plant or propagating material as food, the right to sell within the place where the variety is grown and the use of the variety as an initial source of variation for developing another variety.
The development of sui generis plant variety protection is still in its infancy. Until now, efforts have been made by developing countries to balance their obligations under Article 27.3.b of TRIPS with their specific needs and conditions. Since UPOV is the only model which is generally recognized as fulfilling the criteria of an ‘effective’ sui generis plant variety protection regime, a number of states that have not had the time or resources to devise a completely separate sui generis protection regime have decided to take PBRs as a basis for a plant variety protection regime. In addition to the PBR system, there seems to be a growing trend towards recognizing farmers’ rights alongside and to provide for different compensation mechanisms (benefit-sharing). Other sui generis protection regime s will probably be developed in years to come, in particular by least developed countries which still have until 2005 to implement their plant variety protection regimes. Further, even countries classified as developing countries may amend their legislations over time as further sui generis models evolve. Sui generis protection is evolving and significant innovations can be expected in years to come.
6.6 Geographical indication and IPR
The last three decades witnessed a very impressive growth in agriculture, food production and as a result food became easily available to people below the poverty line. But gradually there has been a stagnation in crop production and the soaring input costs and low output prices are attributed as the main reasons for the desperate life-ending-steps that some of the farmers have resorted to The deceleration in agricultural growth is a point of great concern and several administrative and policy initiatives have now been drafted or put in place. Indian agriculture grew at 3.9% during the current quarter which clearly shows that adjustments are taking place. The present situation in agriculture is partly due to the fact that Indian agriculture has not fully adjusted itself to the global realities. Having reaped the benefit through the seeds of green revolution varieties, farmers were quick to realize the importance of good seeds of new and better varieties of crops. For such superior seeds, farmers were all the more willing to pay a higher price. Seed companies and technology developers saw this as an opportunity to convert plant varieties and important plant genes as profit-making products. Also, as a global strategy, pesticide and seed companies merged to consolidate capital and technology to dominate the market. In various world fora the need to conserve biodiversity, farm level variation, giving credit to farmers for their traditional crop varieties, folk varieties, farmers’ variety, access to benefit sharing, extending consumer assurance by way of geographic indications, appellation of origin, traditional knowledge of medicinal plants are discussed to draft several treaties and agreements. Global commodity trade is now dominated by several such new issues, which in India are still not seriously debated and understood. The carry-over of the colonial agriculture in Independent India was simplistic in the beginning. Attention was drawn towards the implementation of land consolidation, its distribution, irrigation/water resources sharing procedures, execution of fertilizer and pesticide-related Acts and Rules. They were done to ensure the quality of inputs supplied to the farmer. Also mandi/market reforms and cooperatives were put in place along with sound public distribution system to address the issue of equity and fair access to food. All these policy initiatives did contribute to the success of green revolution and towards substantial growth in agriculture and allied sectors.
The Indian Parliament enacted in 1999 ‘The Geographical indications (GI) of Goods (Regulation and Protection) Act’ for registration and better protection of geographical indications relating to goods. Under Section 1(e) it is defined that ‘Geographic Indication’ in relation to goods, means an indication which identifies such goods as agricultural goods natural goods or manufactured goods as originating or manufactured in the territory of a country or a region or locality in that territory, where a given quality reputation or other characteristic of such good is essentially attributed to its geographical origin and in case where such goods are manufactured goods, one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality as the case may be. The focus of the Act is on quality reputation or other characteristic of such good, which is essentially attributed to its geographical origin. In doing so, the geographical domain can be a territory of a country or a region or locality in that territory. The quality of the product is attributed essentially to its geographical origin and if it is of goods either the raw material production or processing or the preparation shall take place in such territory. The Registrar of the GI shall construe the GI in the Registry.
6.6 TRIPS requirements and GI
In the Uruguay Round of WTO negotiations, GI on wines and spirits were granted additional protection under Article 23 of the TRIPS Agreement. And in the Doha Round many member nations are desirous of extending similar level of protection to some of their important goods as well. The TRIPS contains two protection standards for GI and Article 22(2) requires countries to provide a legal means to prevent the use of GI that suggest that the goods originate in a geographic area other than the true place of origin. And Article 22(3) requires that countries should keep in place a legal means to invalidate the registration of trademarks, which contain or consist of a GI with respect to goods not originating in the territory indicated. These provisions are applicable only if the use of the GI is such that it leads to misleading the public as to the true place of origin of the product. Article 24 states that a GI does not have to be protected if it has not been protected or ceases to be protected in the country of origin or when it is a generic term for a product.
6.7 The GI is for time-tested products
It is important to be able to distinguish between brand names containing a geographical term and a geographical indication. The reason why there is an increased rush for GI is that the GI protects the consumer. The GI is perceived as both origin and quality indicator because of which the consumer willingly pays a premium price and that leads to the growth of the regional economy. This is evident by the fact that the European Union alone has granted so far more than 5,000 different GIs.
The GI of Goods Act 1999, is intrinsically integrated with the Section 3 of the Trade Marks Act, 1999 (see Section 2(2) of the GI Act, 1999). The rationale of protecting the GI is similar to that of the Intellectual Property protection. The TRIPS agreement says ‘to be eligible for a GI, good must possess a quality, reputation or other characteristics attributable to its geographic origin’5. However, there are fundamental inferences between Trade Mark (TM) and GI as TM identifies a manufacturer, imply certain amount of human creativity and is usable only by one agency or entity. On the contrary, the GI is complex in definition and perception. It denotes the source of origin, where product quality or specialty that the consumer prefers is governed by the specific physical or biological environment. There is no originality or invention or discovery involved and the GI may depend on Traditional Knowledge (TK) for that product development or on thetalent of the craftsman. Also, the GI can be used by all those who produce that product in that given area and are not restrictive.
6.7 Trade mark and GI
While TM indicates that the product is affiliated with the manufacturer, the GI indicates to the consumer the high quality and reputation of the produce coming from a defined area. The GI can be used by all producers in the area along with their TM. But as a rule, TM that contains a GI cannot be protected, if the use of the TM misleads the public about the true origin of the product. The development of GI is a time-tested process and to carve an aurora about the product it takes decades if not centuries. GI creates a positive impression of the product quality, the environmental virtue and human skill of the area. The premium price it fetches happens in a gentle manner over a protracted period of time and by varied as sessment procedures. Only if the GI can create a positive mind frame on the client over the product will the GI be considered to have some virtue. So while extending the use of GI for food products care should be taken to ensure that the GI strictly complies with all these requirements. Extending the GI for products that are yet to establish a reputation and consumer credibility will dilute the whole purpose of having market dominance and may discredit the entire exercise.
6.8 Ethnic immigrant effects on GI
The post World War II period witnessed a large scale migration and settlement of people from old world nations to the new world countries. These migrants carried with them their ethnic craft and plants to their new found lands. They even named in the new territory provinces, cities, streets, rivers and mountain after thrones in their ‘original homeland’. With several subsequent minor modifications many foodstuffs and farm products were marketed in the new world with brand names and GI that of their ‘original homeland’. This situation creates enormous confusion in the market place between original and new settlement products. There is a running global debate on this confusion of GI, and with emotions being high; the issue has become very complicated.
6.9 The need to avoid making GI too generic
A zone is an area of land without any particular qualifying attribute. And a region is a single tract of land comprising independently owned farmlands, e.g. North West India. A region is said to be discrete between adjoining regions with measurable homogeneity. The sub-region ensures a substantial level of homogeneity in the attributes of the produce covered under GI. Therefore, there is likely to be minor variation in the product, if the GI area is large. For example, Basmati rice if granted GI may cover the rice-growing tracts of North West India and Pakistan while there are minor but acceptable levels of variations between Basmati from Amritsar, Karnal/ Kurukshetra and Dehradun for the reason that this rice growing zone is quite large and enjoys some variation in climate. The current Basmati
Definition accommodates certain defined number of varieties and if the scope of the definition is further enlarged for the purpose of clubbing several of the new rice genotypes that may have Basmatilike or better grain, then such an action may even defeat the very purpose of seeking market dominance for this product through GI.
For purposes of the regulation, a name that has become generic means the name of an agricultural product or foodstuff which, although relates to the place or the region where this product or foodstuff was originally produced or marketed, has become the common name of an agricultural product or a foodstuff. To decide if a given GI has become generic, the following factors can be considered:
• Assess the prevailing situation in the member state in which the GI name originates and the area of consumption of the produce.
• The situation in other member states on the above parameter be examined.
• The relevant national or community laws should have adequate provisions to govern reputation.
The case of ‘Feta’ cheese that has GI involving Greece and the verdict of the European Commission are worth examination. It is in this context that understanding the GI for ‘Basmati’ and the definitions given in the ‘Export of Basmati Rice (Quality Control and Inspection) Rules, 2003’ are important. Adding several other new recent rice materials under the GI banner Basmati would lead to the Basmati GI becoming generic. These new varieties of very high grain quality, with high productivity per hectare can be given another brand name and brand equity can be promoted. Maybe India has to build different quality brand names in rice to offer a wide choice of material to the consumer. Trade concerns, consumer trust and maintenance of product quality are the essence of GI and that would get eroded if the brand Basmati becomes a generic term. Since cultivation of Basmati involves the livelihood security of millions of farmers, rocking the term ‘Basmati’ periodically, with conflicting objectives is not desirable. And a generic definition of GI for basmati and ‘Claw Back’ (CB) option of the European Community, are to be kept in mind. Each of these subzones covers a micro niche of 75 km diameter tract with comparable environment, soil and plant type. Growers in these sub-zones can be registered and their produce can be bar-coded for traceability of the nature of the produce. The GI backed by barcode traceability will enhance the consumer confidence. And if the ‘Paddy Basmati’ of these sub-zones happen to be ‘Farmers’ Variety’ and are
registered under the PPV&FRA 2001, then the trade interests of ‘Basmati Rice’ will be very secure. This then will permit differential pricing for the sub-zone quality and the year-to-year fluctuation in price variation.
6.10 Indication of source/Appellation of origin
‘Appellation of Origin’ (AO) means that a product originates in a specific geographic region and the characteristic qualities of the product are due to the geographical environment, including natural and human factors. Most of the agricultural produce falls under AO. The Lisbon Agreement defines the AO as the geographical name of a country, region or locality that serves to designate the product originating therein, the quality and
characteristic which are exclusively or essentially due to the geographical environment, including natural and human factors. ‘Indication of source’ means that a product originates in a specific geographical region. The ‘Indication of Source’ is clarified as ‘all goods bearing a false or deceptive indication by which one of the countries to which this agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries’. The Lisbon Agreement is considered to be narrow in its scope on AO than the GI now discussed under TRIPS. It is primarily because the AO is not based on the reputation of a product which also means that the TK is not a requirement for getting AO accredited.
6.11 Relationship between farmers’ variety (FV) and GI
The PPV&FR Act 2001 provides certain rights to farmers, such as to save, use --
The GI used to describe an agricultural product or foodstuff should cover
• Originating in specific region, place or country, and
• Possess a specific quality reputation or other characteristics attributable to that geographical origin and the production and/or processing of which is done in the defined geographical area.
• Any established/traditionally valued direct link must exist between the quality or characteristics of the product and its specific geographic origin. Very often the GI material is named and misspelled in a manner that consumers are misled. Homonymous indications are those that are spelled and pronounced alike but mean different as the geographical origin of these products originate from different countries. Conflicts invariably arise when products of homonymous GI are used and sold in the same market. The problem becomes acute if the homonymous GI products are identical in nature. Honesty in business not being a virtue, clandestine branding of GI is a stark violation of trade rules and procedures and now is legally punishable.
The European Community has taken steps to ‘Claw-Back’ (CB) certain GI originating in the European Community such as the Trade Mark PARMA that was registered in good faith and not as a GI indicating its country of origin as Mexico. The Claw Back of the GI means confiscating trademarks without any compensation and without representation from the trademark owner during the negotiations. The GI protection therefore calls for multilateral system for the notification and registration of GIs and the issue of ‘Clawing Back’ of country approved GIs on the basis of generic terms or trade needs through discussion. A sound international binding on GI matters is required to ensure that trademark owners and users of prior generic terms enforce their legal positions properly.
There is a likelihood of minor variation in a GI-covered product and the degree of such variation must be documented. Due to the genetic heterogeneity of the material covered by GI there may be subtle variation in the variety between sub-zones of the geographic area occupied by that variety. For example, if ‘Basmati Rice’ is a GI and the defined zone for growing ‘Paddy Basmati’ is the foothills and adjoining plains of Punjab, Haryana and Uttaranchal, then the variation in rice quality due to ‘Amritsar Basmati’, ‘Karnal Basmati’, ‘Dehra Doon Basmati’, can be accounted. Each of these sub -zones covers a micro niche of 75 km diameter tract with comparable environment, soil and plant type. Growers in these sub-zones can be registered and their produce can be barcoded for trace ability of the nature of the produce. The GI backed by barcoded traceability will enhance the consumer confidence. And if the ‘Paddy Basmati’ of these sub-zones happen to be ‘Farmers’ Variety’ and are registered under the PPV&FRA 2001, then the trade interests of ‘Basmati Rice’ will be very secure. This then will permit differential pricing for the sub-zone quality and the year-to-year fluctuation in price variation.
6.12 Indication of source/Appellation of origin
‘Appellation of Origin’ (AO) means that a product originates in a specific geographic region and the characteristic qualities of the product are due to the geographical environment, including natural and human factors. Most of the agricultural produce falls under AO. The Lisbon Agreement defines the AO as the geographical name of a country, region or locality that serves to designate the product originating therein, the quality and characteristic which are exclusively or essentially due to the geographical environment, including natural and human factors. ‘Indication of source’ means that a product originates in a specific geographical region. The ‘Indication of Source’ is clarified as ‘all goods bearing a false or deceptive indication by which one of the countries to which this agreement applies, or a place situated therein, is directly or indirectly indicated as being the country or place of origin shall be seized on importation into any of the said countries’. The Lisbon Agreement is considered to be narrow in its scope on AO than the GI now discussed under TRIPS. It is primarily because the AO is not based on the reputation of a product which also means that the TK is not a requirement for getting AO accredited.
6.13 The traceability issue
The GIs are essentially collective marks and are put to use for the collective benefit of the producers in a given region. The traceability of the raw material that yields the GI produce is important and the details of the growers and their track record details are a matter of detailed documentation. Genotype apart, the cultivation practices and seasonality of various consignments should be within an area range and the quality of the produce must remain comparable if GI is to be sustained as a trade advantage. This calls for proper survey of the growing area, identifying the farms, documenting their cultivation details, giving them their unique
number which can be traced, indicating it in the container of the graded and packed produce, etc. The cost involved in this exercise is to be met by the growers themselves or their organizations. This added expenditure should match the market benefit that farmers will get out of this exercise. The consumer will bear the burden of cost in many of these cases and he should see that the value provided to his food source traceability and its dependability is acceptable to him. Very often these requirements are imposed on the produce originating from a developing country by the West, insisting on it as part of the quality assurance drive. But the hidden agenda could be to use this as a non-tariff barrier to discourage imports. To comply with the traceability demand, developing countries have to invest in a high technology and thus would incur an overhead expenditure to sustain their agriculture exports. So it can also lead to multi-nationals coming in a big way with capital and technology and they may do the export of Indian farm produce.
6.14 Need protection for GI
Given its commercial potential, legal protection of GI assumes enormous significance. Without suitable legal protection, the competitors who do not have any legitimate rights on the GI might ride free on its reputation. Such unfair business practices result in loss of revenue for the genuine right-holders of the GI and also misleads consumers. Moreover, such practices may eventually hamper the goodwill and reputation associated with the GI.
6.15 International protection for GI
At the international level, TRIPS sets out minimum standards of protection that WTO members are bound to comply with in their respective national legislations. However, as far as the scope of protection of GI under TRIPS is concerned, there is a problem of hierarchy. This is because, although TRIPS contains a single, identical definition for all GI, irrespective of product categories, it mandates a two-level system of protection: (i) the basic protection applicable to all GI in general (under Article 22), and (ii) additional protection applicable only to the GI denominating wines and spirits (under Article 23). This kind of protection is challenging, if Article 22 fails to provide sufficient intellectual property protection for the benefit of the genuine right-holders of a GI. A producer not belonging to the geographical region indicated by a GI may use the indication as long as the product’s true origin is indicated on the label, thereby free-riding on its reputation and goodwill.
6.17 Trips provision on GI
The Uruguay Round of the GATT negotiations began in 1986, precisely when India’s development policy making process was at a watershed. By the time India launched its massive economic reforms package in 1991, marking a paradigm shift in its policy, the Uruguay Round negotiations were well under way, paving the path towards Marrakesh in 1994 and the establishment of the WTO. India remained a cautious and somewhat passive player during the initial years of the Uruguay Round negotiations, given its long legacy of inward looking development strategy and protectionist trade policy regime.
However, at Doha India wanted to extend protection under ‘geographical indication’ (GI) beyond wine and spirit, to other products. A number of countries55 wanted to negotiate extending this higher level of protection to other products as they see a higher level of protection as a way to improve marketing their products by differentiating them more effectively from their competitors and they object to other countries “usurping” their terms. Some others opposed the move, and the debate has included the question of whether the Doha Declaration provides a mandate for negotiations.
Those opposing extension argue that the existing (Article 22) level of protection is adequate. They caution that providing enhanced protection would be a burden and would disrupt existing legitimate marketing practices. India, along with a host of other likeminded countries pressed an ‘extension’ of the ambit of Article 23 to cover all categories of goods. However, countries such as the United States, Australia, New Zealand, Canada, Argentina, Chile, Guatemala and Uruguay are strongly opposed to any ‘extension’. The ‘extension’ issue formed an integral part of the Doha Work Programmed (2001). However, as a result of the wide divergence of views among WTO members, not much progress has been achieved in the negotiations and the same remains as an ‘outstanding implementation issue’.
6.18 The Indian GI act
India has put in place a sui generis system of protection for GI with enactment of a law exclusively dealing with protection of GIs. The legislations which deals with protection of GI’s in India are ‘The Geographical Indications of Goods (Registration & Protection) Act, 1999’ (GI Act), and the ‘Geographical Indications of Goods (Registration and Protection) Rules, 2002 (GI Rules). India enacted its GI legislations for the country to put in place national intellectual property laws in compliance with India’s obligations under TRIPS. Under the purview of the GI Act, which came into force, along with the GI Rules, with effect from 15 September 2003, the central government has established the Geographical Indications Registry with all-India jurisdiction, at Chennai, where right-holders can register their GI.
Unlike TRIPS, in the GI Act does not restrict itself to wines and spirits. Rather, it has been left to the discretion of the central government to decide which products should be accorded higher levels of protection. This approach has deliberately been taken by the drafters of the Indian Act with the aim of providing stringent protection as guaranteed under the TRIPS Agreement to GI of Indian origin. However, other WTO members are not obligated to ensure Article 23-type protection to all Indian GI, thereby leaving room for their misappropriation in the international arena.
The definition of GI included in Section 1(3) (e) of the Indian GI Act60 clarifies that for the purposes of this clause, any name which is not the name of a country, region or locality of that country “shall” also be considered as a GI if it relates to a specific geographical area and is used upon or in relation to particular goods originating from that country, region or locality, as the case may be. This provision enables the providing protection to symbols other than geographical names, such as ‘Basmati’.
6.19 Registration
While registration of GI is not mandatory in India, Section 20 (1) of the GI Act states that no person “shall” be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an “unregistered” GI. The registration of a GI gives its registered owner and its authorized users the right to obtain relief for infringement61. The GI Registry with all India jurisdictions is located in Chennai with the Controller-General of Patents, Designs and Trade Marks is the Registrar of GIs, as per Section 3(1) of the GI Act. Section 6(1) further stipulates maintenance of a GI Register62 which is to be divided into two parts: Part A and Part B. The particulars relating to the registration of the GIs are incorporated in Part A, while the particulars relating to the registration of the authorized users are contained in Part B (Section 7 of the Act).
A GI may be registered in respect of any or all of the goods, comprised in such class of goods as may be classified by the Registrar. The Registrar is required to classify the goods, as far as possible, in accordance with the International classification of goods for the purposes of registration of GI (Section 8 of the Act). A single application may be made for registration of a GI for different classes of goods and fee payable is to be in respect of each such class of goods.
In India a GI may initially be registered for a period of ten years, and it can be renewed from time to time for further periods of 10 years64. Indian law place certain restrictions in that a registered GI is not a subject matter of assignment, transmission, licensing, pledge, mortgage or any such other agreement.
6.20 Rights of Action Against Passing-Off -
The GI Act in India specifies that nothing in this Act “shall” be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In its simplest form, the principle of passing-off states that no one is entitled to pass-off his/her goods as those of another. The principal purpose of an action against passing off is therefore, to protect the name, reputation and goodwill of traders or producers against any unfair attempt to free ride on them. Though, India, like many other common law countries, does not have a statute specifically dealing with unfair competition, most of such acts of unfair competition can be prevented by way of action against passing-off. Notably, Article 24.3 of TRIPS clearly states that in implementing the TRIPS provisions on GIs, a Member is not required to diminish the protection of GIs that existed in that Member immediately prior to the date of entry. This flexibility has been utilised by India in the GI Act (Section 20(2)) in maintaining the right of action against passing-off, which has been a part of the common law tradition of India, even prior to the advent of the TRIPS Agreement. Any lawsuit relating to infringement of a registered GI or for passing of an unregistered GI has to be instituted in a district court having jurisdiction to try the suit. No suit shall be instituted in any court inferior to a district court [Section 66 of the Geographical Indications of Goods (Registration and Protection) Act, 1999.
6.21 Status of GI in India
Around 65 GI’s of Indian origin have already been registered with the GI Registry. These include GI like Darjeeling (tea), Pochampalli, Ikat (textiles), Chanderi (sarees), Kancheepuram silk (textiles), Kashmir Pashmina (shawls), Kondapalli (toys), and Mysore (agarbattis). GI’s registered during 2007-08 include ‘Muga Silk’ from Assam, ‘Madhubani paintings’ from Bihar, ‘Malabar pepper’ and ‘Alleppey Green Cardamom’ from Kerala, ‘Cora Cotton’ from Tamil Nadu, ‘Allahabad Surkha’ from Uttar Pradesh, ‘Nakshi Kantha’ from West Bengal, ‘Monsooned Malabar Coffees’ from Karnataka and Kerala. There is many more Indian GI in the pipeline for registration under the GI Act.
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CHAPTER – VII
7.1 THE CASE OF BASMATI RICE PATENT:
The facts of this case are that in September, 1997, Ricetec was granted a patent for allegedly novel basmati lines and grains which were created from the crossing of the basmati germplasm (of Pakistani origin) taken from an ex situ gene bank in the US with American long grained variety of rice. Ricetec has claimed that the new varieties have the same or better aroma, grain length and other characteristics than the original basmati variety grown in India and Pakistan and can be grown successfully in specified geographical areas in North America. This came to the notice of the government of India in February 1998, and an Inter-Ministerial Committee was set up under the Secretary, Department of Industrial Development, to examine this issue. The Agricultural Export Development Agency (APEDA) of the Ministry of Commerce in the government of India has been entrusted with the task of representing the rice exporters in any re-examination of the patent in the US Patent and Trademarks Office (USPTO), if it is decided that there are sufficient grounds for the eventual revocation of the patent. The Council for Scientific and Industrial Research (CSIR) which successfully opposed and obtained the revocation of a patent on turmeric in 1997 in the USPTO is assisting in this exercise too. In 1996-97, India exported about 490,000 MTs of basmati rice valued at about $ 358 million, constituting over 60 per cent of the value of India's total exports of rice. Irrespective of what is decided in the USPTO on the revocation of the basmati patent, the question is can Ricetec or any other company use the name basmati to sell rice that does not originate from India or Pakistan? In other words, can basmati be protected as a geographical indication? There is no unequivocal answer as Ricetec has claimed that basmati is a generic name denoting a variety of rice. Moreover, if Ricetec or any other company sells rice similar to basmati and labels or advertises this as 'American made basmati type rice' or 'basmati style rice', with a clear indication that the product originates from the US, there is no deception of the public even while the reputation and goodwill attached to the name basmati is diluted. The TRIPS Agreement accords absolute protection against the use of geographical indications with the words 'type', 'style', 'kind' etc. only to wines and spirits and to no other commodity. In addition, if the Courts in the US finally rule that the name 'basmati' is already generic, as it is understood to denote a variety of rice not necessarily associated with any geographical region, there would be no protection available for it. This is not yet tested in the Courts in US, although APEDA is opposing the registration of the trademark 'Texmati' by Ricetec in the UK on the grounds that it would deceive the consumers as rice originating from India and Pakistan. That the GAFTA of UK strictly enforces its labeling requirements where `basmati' can only be used for rice originating from India and Pakistan should help India's case. As on date the case has not yet been finally decided in the UK Trademarks Registry.
Some have opined that taking a patent derived from the basmati germplasm amounts to biopiracy by Ricetec. However, it must be noted that the germplasm was taken from an ex situ collection in the US and that the CBD had skirted the issue of ownership of genetic resources in international collections. Thus, in the current international law there is no prohibition on the exchange or use of such germplasm even if this is for commercial purposes. Source : Various reports in the media from February to April, 1998 and the TRIPs Agreement. There is a widespread belief in India that unless there is a domestic sui generic legislation to protect geographical indications, these marks cannot be protected in other countries. TRIPS does allow WTO Members to deny protection to geographical indications that are not protected in the country of origin. This, however, has to be translated into domestic law, unless the Agreement is directly applicable in that country. It is not widely recognized that India already permits the protection of such marks through certification marks as well as under the common law tort of passing off, provided it can be proved that the consumer would be deceived. The problem is that the certification mark system or even any sui generis legislation requires the definition of the particular product. For instance, what are the agreed characteristics of 'basmati' rice? Today, the delay in according domestic recognition to the mark 'basmati' probably is more because the rice producers of India are unable to come to an agreement on the definition of the mark 'basmati', than because the government has not passed a sui generis legislation on this subject. In any event the government has under its consideration a draft legislation to protect geographical indications in order to meet its TRIPS obligations. The relevant provisions of TRIPS on geographical indications need to be implemented by 1.1.2000.
7.2 THE CASE OF NEEM TREE PATENT
• The Issue
The United States and India are currently involved in a biopiracy dispute over the rights to a tree indigenous to the Indian subcontinent, the neem tree. While the neem tree has been used in India for over 2000 years for various purposes such as pesticides, spermicidal and toothbrushes, a US company has been suing Indian companies for producing the emulsion because they have a patent on the process. The dispute is over the rights of companies to conduct research and development by using patents against the interest of the people who live at the source of the resource. To what extent can multinational companies claim and patent resources from the developing countries, like India? The movement around the issue of the neem tree and trade-related aspects of intellectual property rights (TRIPS) represents a challenge to the developing countries..
Description
• Traits
There are approximately 14 million neem trees (Azadirachta indica) in India. Access to neem products was very cheap (if not free) and easy to get. It is a tropical evergreen, related to the mahogany, that mainly grows in arid regions of India and Burma and Southwest Asia and West Africa. When temperatures do not drop below freezing, it may grow up to 50 feet tall. They are estimated to live up to 200 years. The neem tree has many versatile traits that can be traced back to the Upavanavinod, an ancient Sanskrit treatise dealing with agriculture. This treatise cites the neem tree as a cure for ailing soil, plants and livestock. The tree has been referred to as the 'curer of all ailments' and the 'blessed tree' by both the Hindu and Muslim population in India. The leaves and the bark have been used to treat illnesses such as leprosy, ulcers, diabetes and skin disorder. It has also been used to make spermicidal and pesticides. The neem tree is known as the tree for all seasons because of its versatility. Here is a list of its many uses::
1)Medicine - Many ancient and traditional medical authorities Indian texts place neem as a vital resource for pharmacy. They mention the usefulness of the leaves, bark, flowers, seeds and fruit for treating several diseases such as diabetes, ulcers and skin disorders. For example, some people chew neem leaves in the morning for 24 days to protect the body from diseases like hypertension and diabetes. The juice of the neem tree (5ml) mixed with equal amounts of honey reduces oozing from ears and also removes inflammation. The ash of the dry neem leaves is used to remove urinary stones.
2)Timber - The chemical in neem makes it resistant to termites, which is an extremely useful quality to have in construction. It is interesting to note that there is a new EPA regulation that bans certain chemically treated wood.
3)Toiletries - Neem twigs have been used by millions of Indians (including my parents) as an antiseptic tooth brush. Its oil is used for preparing soap and toothpaste.
4)Contraception - The oil of neem is a potent spermicidal.
5)Fuel - The oil can also be used as lamp fuel.
6)Agriculture - Even dating back to the ancient Sanskrit treatise dating about 600 BC dealing with forestry and agricultural, the Upavanavinod, neem was seen as a cure for ailing plants and livestock. The cake, or residue, is fed to livestock and its leaves increase the fertility of soil. The most important, and controversial, is its use as a potent insecticide. It is effective against approximately 200 insects.
Making pesticides emulsion does not take highly sophisticated equipment, as native peoples have been making it for over 2000 years. Indians have developed their own process of cracking off the top that would then be used on plants as a pesticide. Neem based pesticides, medicines and cosmetics have been produced by some laboratories in India, but there has not been an attempt to make ownership of the formula legal because Indian law does not allow agricultural and medicinal products to be patented. In 1971, a timber company in the United States figured out that the neem tree's usefulness in acting as a pesticide and began planting neem tree seeds. He received a patent on it and, in 1988, sold the patent to the US based company W.R. Grace. In 1992, W.R. Grace secured its rights to the formula that used the emulsion from the Neem tree's seeds to make a powerful pesticide. It also began suing Indian companies for making the emulsion. The controversy over who has the rights to the Neem tree raised many questions. India claims that what the US Companies are calling discoveries are the actual stealing and pirating of the indigenous practices and knowledge of its people. The Indians and members of the Green Party in the European Union oppose big businesses owning the rights to living organisms, otherwise known as biopiracy, because they believe that the rights of poor farmers in developing countries will be harmed.
• Hypothetical Case
The villager supplier of neem products ranging from pesticides to formulations for creams to cure skin disorders, Raju, was not the first in his family to use the "blessed tree" for as many purposes as possible. His family revered and knows all of the tree's sacred qualities. While Raju did not know the exact word for the extract of the neem seed, Azadirachtin, he did know that it helped all the people in his village in one way or another. One day his life changed drastically. An American company called W.R.Grace patented the natural insecticide that had been used for generations by Indian farmers. The company was allowed to patent the process of making the insecticide because the Indian government did not patent agricultural or pharmaceutical products. This patent caused many problems for Raju because he could no longer use the traditional method of smashing the neem seeds, scooping the emulsion from the top, and selling it to local farmers as pesticide. This was the method he and his family had used for generations. He was told that he had to pay the company royalties for using their innovation because farmers in India did not hold a patent for the process. It just did not make any sense. The economy seemed to be overtaking his society. The worst part about it was that the community, his people, did not get any benefits from the patents. Raju often asks, how is it possible for American companies to come into our country, steal our knowledge and make money off of it? He was also concerend why the Indian government did not protect the neem emulsion through patents themselves. This is a question that many intellectual property disputes have to answer.
• Dispute
There is an increasing awareness in India of the commoditization of neem will lead to the expropriation by multinational corporations, like W.R. Grace (Shiva, Vandana "Piracy by Patent: The Case of the Neem Tree," in The Case of the Global Economy: and for a turn toward the local, edited by Jerry Mander and Edward Goldsmith, Sierra Club: San Francisco, 1996, p. 154). On Indian Independence Day in 1995, farmers in from Karnataka rallied outside the district office to challenge the demands for made by multinational corporations for intellectual property rights. As part of their protest, the farmers carried twigs and branches from the neem tree as a symbol of their collective indigenous knowledge of the properties of the neem . The United States, on the other hand, states that what they are doing will help the Indian economy. India is not against sharing its information about the Neem tree's virtues, but it is against countries and corporations that intend to stop India's present use of it. Another issue is whether the neem tree is patenable, since it is a product of nature, which shows that it is not a result of innovation and discovery. The problem is that W.R. Grace does not have a patent on the tree itself, but rather on the process of making the emulsion. They believe that this process is a discovery because it entails manipulation yielding greater and better results. In other words, discovery seems to have both old and new definitions. The problem is over the use of novel scientific advances on traditional Indian techniques. According to Vandana Shiva, the director of the Research Foundation for Science, Technology and Natural Resource Policy in India, "corporate processes are supposedly novel advances on Indian techniques" (Shiva: 152). She goes on to state that the reluctance of scientists in India to patent agricultural and pharmaceutical inventions may be a result of their recognition that the bulk of work had already been accomplished by generations of anonymous, Indian experimenters (Shiva: 153). For example, "Dr. R P Singh of the Indian Agricultural Research Institute asserts: `Margosan - O is a simple ethanolic extract of neem seed kernel. In the late sixties we discovered the potency of not only ethanolic extract, but also other extracts of neem. Work on the neem as pesticide originated from this division as early as 1962. Extraction techniques were also developed in a couple of years.
The World Trade Organization (WTO) is asking developing countries to open up to foreign direct investment from abroad and to liberalize their trade policies. There has been a restructuring of General Agreement on Tariffs and Trade (GATT) into the WTO. This resulted in agreements on trade-related aspects of intellectual property rights (TRIPS) made during the Uruguay Round. These agreements created a trend towards a legal framework for intellectual property rights including a consensus to follow and establish patent laws in conjunction with those of the developed world. While this can be seen as a good sign for India, it still causes a problem because of the Indian government's reluctance to issue patents on agricultural and pharmaceutical product. Also, there is a lack of knowledge of the legal process that surrounds intellectual property rights. Indian business owners argue that the lack of patents leads their technology to move to the developed world. India feels that by letting foreign companies control resources, they become more vulnerable to them. As a result, there has been a backlash on foreign investment and less joint ventures between India and the United States.
• Legal Clusters
The World Trade Organization (WTO) is encouraging developing countries to expand their legal protection of intellectual property rights in order to be on a similar "playing field" with the developed countries. In an effort to standardize trade rule, the WTO is also asking developing countries to open up to foreign direct investment from abroad and to liberalize their trade policies. The WTO believes that the restructuring will lead to a development of more modern economies. There has been a restructuring of the General Agreement on Tariffs and Trade (GATT) into the WTO. This resulted in agreements on trade-related aspects of intellectual property rights (TRIPS) made during the Uruguay Round. TRIPS, the forum for dispute, created a trend towards a legal framework for intellectual property rights. It also forced countries to honor the northern/Western interpretation of patent rights (Shiva: 147). According to Shiva, "the northern countries argued that when southern farmer's attempted to retain free use of their own seeds, developed by them over thousands of years, it was a form of piracy, but the pirate's hat clearly belongs on the other head" .
One of the major parties involved is obviously the Indian government who has signed onto the TRIPS agreement. India's laws still do not allow patents on agricultural and pharmaceutical products. Another party involved is the business community (like W.R. Grace) that needs intellectual property rights to encourage development in foreign countries because it gives more incentive to the business owners that their property or "inventions" will be protected. They believe that the result of researching and development in foreign countries can lead to a greater public good because of the new discoveries of medicines and other innovations that will result. Another forum for dispute surrounding the neem tree is the Convention on Biological Diversity (CBD) that took place in 1992 at the United Nations Conference on Environment and Development. Article 15 of the convention states bio-assets are the property of the sovereign states in which they are from. In other words, they are not the property of the world at large. India's claim is that what the Western world is calling discoveries is actually an indigenous method that they have been suing for years. They say that it is a bio-asset that is protected under Article 15 of the convention. While CBD emphasizes the rights of sovereign nations over biological resources, such as the neem tree, it still calls for the acceptance of intellectual property rights. What this means is the CBD calls for governments, such as India, to provide the proper patents or other forms of protection on the life forms and include pharmaceutical products.
Another WTO dispute that relates to the TRIPS agreement is a case that involves India, as well. This case is regarding Basmati rice. India feels that because the United States has granted a patent for Basmati rice, that it is violating the TRIPS agreement. They say that Basmati rice is exclusively associated with India and Pakistan. They want the United States to take away their patent on the rice because they felt it is an indigenous product of their country. India's problem with the neem tree is similar to the Basmati case because they have realized the importance for creating laws that conserve bio-assets and control piracy. They feel that protecting their assets through patents may protect them from other companies like Rice Tec that took advantage of the nonexistent Indian laws. Indian farmers want to protect their cultural heritage. It seems the best way to do it is to change their philosophical attitude that natural resources should not be patented in order to protect and preserve India's biodiversity and also to conform to international laws and agreements like the TRIPS agreement. According to Shiva, there has been a new alliance of farmers and scientists to formulate an alternative form of intellectual property rights - what they term collective intellectual property rights (CIPR's) (Shiva: 157). It allows people to have the right to benefit commercially from traditional knowledge. In other words, the farmers want to solve their disputes at the local level or village organizations rather than through GATT panels.
7.3 THE CASE OF TURMERIC
Turmeric is a tropical herb grown in East India, and the powdered product made from the rhizomes of its flowers has several popular uses worldwide. Turmeric powder, which has a distinctive deep yellow color and bitter taste, is used as a dye, a cooking ingredient, and a litmus in a chemical test, and has medicinal uses as well. In the mid-1990s, this product became the subject of a patent dispute with important ramifications for international trade law. A U.S. patent on turmeric was awarded to the University of Mississippi Medical Center in 1995, specifically for the "use of turmeric in wound healing." This patent also granted them the exclusive right to sell and distribute turmeric.[1] Two years later, a complaint was filed by India's Council of Scientific and Industrial Research, which challenged the novelty of the University's "discovery," and the U.S. patent office investigated the validity of this patent. In India, where turmeric has been used medicinally for thousands of years, concerns grew about the economically and socially damaging impact of this legal "biopiracy." In 1997, the patent was revoked. But for two years the patent on turmeric had stood, although the process was non-novel and had in fact been traditionally practiced in India for thousands of years, as was eventually proven by ancient Sanskrit writings that documented turmeric’s extensive and varied use throughout India’s history. Many developing countries are concerned that the globalization of intellectual property rights under the WTO's TRIPs agreement, and the negative consequences it has for traditional indigenous knowledge and biodiversity. Short of dismantling TRIPs, however, one possible solution to the problem of biopiracy in certain cases like turmeric would be for countries to claim protection for indigenous products and processes as geographic indications. GIs are defined in the TRIPS agreement as "indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation, or other characteristic of the good is essentially attributable to its geographic origin." India and other developing countries are already constructing databases of indigenous knowledge to guard against biopiracy. Indigenous products and processes identified in these databases could be further protected if the case for geographic indication could be made. For these, not only would biopiracy be prevented, but developing countries could start profiting from the export of such knowledge and products.
• Explaining
This case study will investigate two interrelated issues highlighted by the turmeric dispute. First, there is the specific issue of whether the use of turmeric in wound healing should have qualified as a patentable U.S. product - whether it meets the legal criteria of "Novelty, Non-Obviousness, and Utility" - and what India's rights should be with regard to trading the herb bilaterally. There are alleged weaknesses in U.S. patent law that discriminate against developing countries by failing to recognize products like turmeric as "non-novel," despite the fact that this medicinal plant and other traditional agro-chemicals have been used in healing for thousands of years. Secondly, there is the problem of international intellectual property rights law. World Trade Organization rules largely mimic and support the U.S.-style patent system, and as a result, they reflect the same biases and pose a threat to the sanctity of indigenous knowledge. The WTO TRIPs agreement, specifically, has led to a cry for reform from developing countries that consider this "biopiracy" a threat to their economies and their biodiversity. Some activists charge that the WTO should retreat entirely from intellectual property rights enforcement. Reform advocates consider it the WTO's duty to protect indigenous knowledge from foreign patents, so that the dispute process can be accessible and universal. Scientists and academics in India have been some of the most vocal critics of the WTO's brand of intellectual property rights enforcement. As an ecologically biodiversity country struggling to emerge from poverty by integrating itself in the world's trade regime, India has much to be gained from such reform, as it would likely lead to the revocation of U.S. patents on many other Indian products (like Neem, Amla, Jar Amla, Anar, Salai, Dudhi, Gulmendhi, Bagbherenda, Karela, Rangoon-ki-bel, Erand, Vilayetishisham, Chamkura). Developing countries increasingly sees biopiracy as a significant issue that urgently needs to be addressed. Since many of these countries are havens of biodiversity and rely economically on their ability to export indigenous products and processes, they see the rising importance of protecting their traditional knowledge from unjustifiable foreign patenting. The only sovereign state affected in the case was the United States, whose courts presided over the legal proceedings and whose Patent Office was forced to revoke the turmeric patent. India as a state was not involved, though its Council of Scientific and Industrial Research, which is partly government-funded, was responsible for challenging the U.S. patent. In another sense, citizens of all WTO member countries were legally affected by the decision in that they regained respect to their rights to use turmeric in wound healing without paying royalties in some form to the University of Mississippi Medical Center, as they would have been required to do under the TRIPs agreement.
• Determine:
U.S. Patent #5,401,504 had the potential to disrupt the flow of a key good in this spices trade: turmeric. The patent was labeled "Use of Turmeric in Wound Healing." Patents are not commonly considered barriers to trade, a term usually reserved for tariffs, quotas, and the like. But intellectual property rights, in all their forms, have the same effect of restricting the free flow of goods, services, and ideas. The TRIPs agreement negotiated in the WTO's Uruguay Round solidified the world trade regime's commitment to implementing U.S.-style intellectual property rights worldwide. The proliferation of bilateral and regional trade agreements, in addition to the expansion of the WTO, means that more and more countries are agreeing to enforce intellectual property laws within their borders. Pharmaceutical patents are a hot issue because while drug companies insist that their products need to be protected in order for them to recover R&D costs, there is a huge negative impact on human health worldwide from these patents. While that debate rages, it should be clear that arbitrarily patenting a centuries-old herbal medicinal practice is unjustifiable. An internationally enforced patent on the "use of turmeric in wound healing" would mean that suddenly hundreds of millions of Indians (and anybody else) would have to pay in order to apply turmeric to their wounds. Given drug prices today, it might become prohibitively expensive for most of those people. The patent on turmeric, had it not been overturned, would have caused an outflow of money from India to the U.S. in the form of licensing fees. Intellectual property rights, in short, have costs. The outrageous nature of the turmeric case aside, it is worth considering the losses that developing countries incur by agreeing to enforce U.S.-style patent laws. In 2002 Net patent rents refer to the transfer of money out of India in the form of licensing fees and royalties. Deadweight losses refer to the cost of allowing a good to be priced much higher than its production cost. Both types of losses could have been incurred because of the turmeric patent, and this doesn't begin to calculate the social cost to Indians then forced to pay for the medicinal use of turmeric.
While it is impossible to determine what the particular total social cost to India would be of enforcing the U.S. turmeric patent, the total estimated cost of TRIPs adherence, at nearly $3 billion, is startling. It is evident that international legal protections against biopiracy are in developing countries' best interests, so that the costs of joining the world' liberal trade order do not become even more inflated. Activist Vandana Shiva takes this view a step further, accusing the West of using patent laws as a system to 'rob' the Third World and TRIPs and the WTO as the enforcing authority.[2] During the Uruguay Round the US accused developing countries piracy in pharmaceuticals amounting to $2.5 billion. But the Rural Advancement Foundation International (RAFI) has shown that "if the contribution of Third World peasants and tribal is taken into account, the roles are dramatically reversed: the US owes [over $5 billion in royalties] for pharmaceuticals to Third World countries."
• Exporters and Importers:
The leading countries in turmeric trade are listed below.
Due to the specificity of this agricultural product, following lists were not compiled based on any hard numbers from statistical trade databases. The countries listed were repeatedly referred to in a wide range of readings as chief producers or major importers of turmeric.
• Top exporters:
India (largest exporter of spices), Thailand and other Southeast Asian countries,
Various Pacific islands, Central and Latin American countries, Taiwan
• Top importers:-
Japan, Sri Lanka, Iran, North African countries, Middle Eastern countries, Ethiopia, United States, United Kingdom
The first five importers listed –
Japan, Sri Lanka, Iran, and the regions of the Middle East and North Africa, represent 75% of all turmeric imports.
• Environmental Problem Type:
Intellectual property and biodiversity Developing countries increasingly sees biopiracy as a significant issue that urgently needs to be addressed. Since many of these countries are havens of biodiversity and rely economically on their ability to export indigenous products and processes, they see the rising importance of protecting their traditional knowledge from unjustifiable foreign patenting. After all, as Suvira Srivastava quips, "Knowledge is the global currency for the 21st century." India, as a biodiversity hotspot, is taking a leading role it committing to the protection of its knowledge base. This is evidenced by the government's creation of the Traditional Knowledge Digital Library (TKDL), which documents all practices of traditional treatment. The goal of this ambitious project is to preclude these treatments from being patented as novel ideas.
• Other Factors
The patenting of indigenous knowledge by foreign corporations is a cultural threat to countries like India as well as an economic one. The case of turmeric is a perfect example, since it plays such an extensive role in India's culinary and health practices, among its other uses (see the picture above of a woman being anointed with turmeric in a ritual). Spices are also an integral part of India's culture more generally. The spice trade has shaped India's history since antiquity, and led to its subjugation by Portuguese, Dutch, and English colonists. The patenting of turmeric almost seems like a modern version of this theft.
• Impact of Trade Restriction:
High Although this study is part of the Trade and Environment Database, raw import and export data are not integral statistics for the case, because trade in turmeric itself would not have been affected by the patent. At issue is the trade of knowledge, and the threat that biopiracy poses to the free flow and use of non-novel ideas. Therefore, the trade data listed below is only intended to give an idea of the importance of spice and agricultural production in India's economy.
7.4 DARJEELING TEA PATENT CASE-
Protection of Geographical Indication (GI) has, over the years, emerged as one of the most contentious IPR (Intellectual Property Rights) issues in the realm of the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS defines GI as any indication that identifies a product as originating from a particular place, where a given quality, reputation or other characteristics of the product are essentially attributable to its geographical origin. Also a geographical indication (GI) gives exclusive right to a region (town, province or country) to use a name for a product with certain characteristics that corresponds to
their specific location. The Geographical Indications of Goods (Registration and Protection) Act, 1999 protect the GI’s in India. Registration of GI is not compulsory in India. If registered, it will afford better legal protection to facilitate an action for infringement.
• CASE STUDY -
Tea is India’s oldest industry in the organized manufacturing sector and has retained its position as the single largest employer in this sector. Around 30 per cent of the world’s tea is produced in the country. India is also the world’s largest consumer of tea. However, on
the export front India is facing huge competition from other key tea producing countries, such as Kenya, Sri Lanka and China.
‘Darjeeling’ tea is a premium quality tea produced in the hilly regions of the Darjeeling district West Bengal—a state in the eastern province of India. Among the teas grown in India, Darjeeling tea offers distinctive characteristics of quality and flavour, and also a global reputation for more than a century. Broadly speaking there are two factors which have contributed to such an exceptional and distinctive taste, namely geographical origin and processing. The tea gardens are located at elevations of over 2000 meters above sea level.
• History
The history of Darjeeling tea dates back to the 1840’s, when India was a British colony. Before the arrival of the British, the forests of the region were known as Darjeeling today was inhabited by the Lepta tribes. In 1828, while visiting this region located in the backdrop of the snow-clad Himalayan range, a young British called Captain Lloyd discovered the possibility of converting the region into a hill station or a sanitarium. In 1839, Darjeeling was handed over to Dr. A. Campbell, a civil surgeon, who got transferred from Kathmandu to Darjeeling to become the first Superintendent of the Darjeeling district, a position which he held for the next twenty two years65. In 1841, Dr. Campbell brought the seeds of China variety of tea from Kumaon hills of North India and planted them near his residence in his Beech wood garden in Darjeeling, 2134 meters above the mean sea level. Seeing the success of Dr. Campbell’s experimental tea nursery, the British Government decided to put out tea nurseries in the region in the year 1847. Even after the Indian independence from British rule in 1947, the British ownership continued in many tea gardens of Darjeeling. By the end of the 1970’s, most of the tea gardens of Darjeeling were in the hands of Indian owners. The major portion of the annual production of Darjeeling tea is exported, the key buyers being Japan, Russia, the United States, and the United Kingdom and other European Union (EU) countries such as France, Germany and the Netherlands66. In order to ensure the supply of genuine Darjeeling tea in February 2000, a compulsory system of certifying the authenticity of exported Darjeeling tea was incorporated into the Indian Tea Act of 1953. The system makes it compulsory for all the dealers in Darjeeling tea to enter into a license agreement with the Tea Board of India on payment of an annual license fee.
• Why Protect “Darjeeling Tea” as Geographical Indication
An adequate legal protection is necessary for the protection of legitimate right holders of Darjeeling tea from the dishonest business practices of various commercial entities. For instance, tea produced in countries like Kenya, Sri Lanka or even Nepal has often been passed off around the world as ‘Darjeeling tea’. Appropriate legal protection of this GI can go a long way in preventing such misuse. Without adequate GI protection both in the domestic and international arena it would be difficult to prevent the misuse of Darjeeling Tea’s reputation, wherein tea produced elsewhere would also be sold under the Darjeeling brand, causing damage to consumers and denying the premium price to Darjeeling tea industry. The industry is now waking up to the fact that unless Darjeeling Tea is properly marketed and branded, the survival of the industry may be at stake and GI protection along with stringent enforcement can go a long way in helping the industry to improve its financial situation.
7.5 Evolution of Legal Protection
The first attempt on the part of the Tea Board of India towards protection of the ‘Darjeeling’ brand was undertaken way back in 1983, when the ‘Darjeeling’ logo was created. The Tea Board obtained home protection for the Darjeeling logo as a certification trade mark under the Indian Trade and Merchandise Marks Act 1958 (now the Trade Marks Act, 1999). The registration was granted in class 30 in the name of the Tea Board in 1986. In the same year, the logo was registered as a trademark in several other countries like the UK, the USA, Canada, Japan, Egypt, and under the Madrid Agreement covering Germany, Austria, Spain, France, Portugal, Italy, Switzerland and former Yugoslavia.
In the absence of a separate law dedicated exclusively to GI’s in India during that time, the word' Darjeeling’ was also registered under the Trade and Merchandise Marks Act 1958 in class 30 in the name of Tea Board in 1998. When the Geographical Indication Act in India was enacted in September 2003, the Tea Board applied for GI protection of ‘Darjeeling’ in October 2003. In October 2004, Darjeeling was granted the GI status in India to become the first application to be registered in India as a GI.
7.6 Enforcement Steps Taken by The Tea Board of India
In order to prevent the misuse of ‘Darjeeling’ and the logo, the Tea Board has since 1998 hired the services of CompuSmart, a World Wide Watch agency. CompuSmart is required to monitor and report to the Tea Board all cases of unauthorized use and attempted registration. Pursuant to CompuSmart's appointment, several cases of attempted registrations and unauthorized use of ‘Darjeeling’ and Darjeeling Logo have been reported.
The tea board tried to prevent unauthorized use or attempt or actual registration of Darjeeling word/ logo that were brought to its notice. [Refer Annexure B] Some disputes relating to Darjeeling tea have been settled through negotiations undertaken by the tea board of India with the foreign companieslxix. For example Bulgari, Switzerland agreed to withdraw the legend ‘Darjeeling Tea fragrance for men’ pursuant to legal notice and negotiations by the Tea Board. The Tea Board has fought almost 15 cases in the last four years against infringement and misuse of the word Darjeeling Tea worldwide which includes Russia, USA, Japan, France, Germany, Israel, Norway and Sri Lanka etc.
While the Tea Board has made strides in its quest for international recognition of Darjeeling tea as a trademark, recognition of Darjeeling Tea as a Geographical Indicator in the international arena is still to be achieved, primarily due to the fact that Article 23 of TRIPS gives good protection to Wines and Spirits, but currently not for other products. The lack of a multilateral system of notification and registration for products like Darjeeling Tea which is available for wines and spirits, is jeopardizing the international protection that would offer adequate protection. It is there important for India to seek extension of GI protection to other products by amending Article 23 of the TRIPS.
7.7 Biodiversity Legislation
A point was raised whether utility patents which originally applied to industrial products can be relevant for biological materials. Similarly, there was discussion on whether the UPOV model of sui generis protection is suitable one or whether India should define its own sui generis system. It was felt that the evolution of UPOV system was based on developed countries in a different context, with their greater reliance on the private sector in plant breeding and with their larger size of farms. This is very different from the situation in developing countries, where there is a large public sector presence in plant breeding and small land holding patterns. There was much discussion on what constitutes farmers' privilege, farmers' rights and community rights. One participant expressed the view that farmers' privileges give the impression that it is optional and hence the term farmers' rights should be used. It was observed by some that it is not entirely correct to say that farmers' rights are being excluded from the Plant Variety Protection (PVP) legislation to be dealt only in Biodiversity legislation. To substantiate this point, it was stated that the title itself was 'Plant Variety Protection and Farmers' Rights'. However, in further discussion it was clear that this legislation dealt with farmers' privileges. While some expressed the view that farmers' rights should be included in the biodiversity law others said that it should be included in PVP.
Yet others felt that there should be only a single legislation to deal with farmers' rights and community rights. Those arguing that farmers rights should be dealt with in the biodiversity law were of the opinion that as plant variety protection and biological diversity are two separate issues they should be dealt with in separate legislations. As far as farmer's rights are concerned they should be rewarded at the national level rather than at community level, the experience of communities entering into agreements with corporate entities not having been satisfactory. The modalities of benefit sharing between corporations and communities should be worked out carefully.
The point was raised that the Community Gene Fund by imposing a levy on sale of seeds will increase the cost of seeds to farmers, as seed corporations were likely to pass on these costs in the final prices to farmers. Since the opening up of the seed sector for private sector participation in 1989, research in self-pollinated varieties has not picked up because of lack of PVP. The seed companies are concentrating on research on hybrid varieties. These companies are much less bothered about farmers' privilege than about the copying of technology by rival seed companies. While some were of the opinion that the TRIPs Agreement gives enough flexibility to incorporate issues of public interest, others ruled it out completely. Indian seed companies going in for collaboration with seed MNEs, would have to contend with the fact that the research agenda would be set by these MNEs and not by Indian companies.
7.8 IPR: Patentable subject matter in agriculture:
Patentable subject matter in agriculture and alternative forms of IPR were considered. It also covered what is not patentable and where protection can or cannot be granted under copyrights, designs, geographical indications of goods, trademarks, undisclosed information (trade secrets), plant variety protection, etc. The coverage also included some case studies and a few comparisons with prevailing scenario in other countries.IPR: Technical opportunities in agriculture: IPR implications were observed on plant varieties, farmers’ rights, biodiversity and environment. It also covered the biotechnological opportunities from IPR protection. In addition, coverage was made in respect of technology transfer, biosafety, institutional capacity building, human resource development and related matters.IPR: Enabling environment for accelerated R&D and global competitiveness in Indian agriculture: A broad range of issues and concerns related to the enabling environment were discussed and deliberated upon for steering India through the existing and emerging scenario on IPR. This included commercialization, competitiveness, safeguards, information management, indigenous and traditional knowledge (ITK), and orientation of research and development for technology development, transfer, trade, monitoring and management in the national and international context. The recommendations that emerged as a result of these deliberations are given below.
Recognizing that the capital intensive frontier areas of technology generation require high investment and at times long gestation periods, and that IP protection is one of the important means of resource generation aimed at further enhancing the R&D, a high priority should be given to generation, evaluation, protection and effective commercial utilization of tangible products of intellectual property in agriculture. A dynamic and rational approach should be followed for IPR protection and portfolio management. Protection should be availed for the intellectual property involved in inventing new technologies using one or more than one form of protection in conjunction. Choice of any form of protection should be based on its relevance, enforcement mechanism, scope, and jurisprudence. Use of trademarks for brand development of Indian agricultural products should be encouraged as safety net in agribusiness. Remedies like ‘passing off ’ should be availed of in jurisdictions where Common Law Jurisprudence is effective. Realizing the emergence and importance of several new tools for growth in farm sector—biotechnology, hybrid technology, biocontrol agents, biofertilisers, vaccines, diagnostics, improved implements and machinery—and also that IPR regime is bound to affect development and use of these tools, future technological options in agriculture should be fully harnessed from the knowledge, the art and the strength to realize the IPR opportunities. Core competence should be developed through appropriate means, mechanisms and systems to harness the best of the intellectual property generated. _ Recognizing the need to capitalize on our national resources and capabilities to attain and sustain IPR advantages locally, regionally and globally with timely and effective action, the area of IPR in agriculture should be addressed in conjunction with traditional rights and indigenous knowledge. Access to genetic resources in the new regime is likely to be facilitated but it will certainly be regulated. Rights to equitable sharing of benefits must be suitably balanced with the rights to IPR protection wherever applicable. Acknowledging that the issues of IP protection by third parties based on our indigenous traditional knowledge (ITK) are sensitive and important, a high priority and liberal financial allocation should be made to the projects that may lead to development and strengthening of traditional knowledge and resource databases in order to discourage such protection by third parties. Appreciating that in accordance with the intergovernmental commitment by developing countries to grant product patents in all fields of technology earliest by 1 January 2005, high priority must be accorded to the development of competitive products, particularly in agrochemicals and biotechnology, in Indian agriculture, besides, further making suitable amendments in the Patents (Amendment) Act, 2002. Recognizing the available strengths for animal genetic resources and generation of competitive technology in farm animals, poultry and fish in the country, and also realizing that appropriate IP protection laws in this area are lacking, steps should be initiated on the analogy of Protection of Plant Varieties and Farmers’ Rights Act,
2001 so that in future animal and fish breeds/strains and also farmers’ rights on
these genetic resources are protected by law.
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CHAPTER - VIII
8.0 INDIA's OBLIGATIONS ON AGRICULTURE IPRs :
AWEARNESS OF INTELLECTUAL PROPERTY RIGHTS -
India is not yet a Member of the Paris Convention or the UPOV. However, India is a founder member of the WTO and is therefore party to the TRIPS Agreement which came into force on 1.1.1995. Being a developing country, India is entitled to a transition period of five years up to 1.1.2000 for most provisions of TRIPS. An important exception is the introduction of product patents in areas of technology not covered so far, for which time is available up to 1.1.20059. Nevertheless, the so-called process-by-product patents with the reversal of burden of proof would have to be in place by 1.1.2000. At present the Patents Act, 1970 does not allow the patenting of plants or animals or micro-organisms. Although it does not contain any such specific exclusion, the definition of an invention seems to exclude these10. Even microbiological processes are excluded if they involve a method of agriculture or See for instance the writings of Anil Gupta of the Indian Institute of Management, Ahmedabad, such as, 'Technologies, Institutions and Incentives for Conservation of Biodiversity in non-OECD Countries: Assessing Needs for Technical Cooperation' in OECD Proceedings of the Cairns Conference on Investing in Biodiversity, 25-28 March, 1996.
In the areas of pharmaceuticals and agricultural chemicals, product patent applications must be accepted from 1.1.1995 itself and exclusive marketing rights must be granted for a period of five years or till the product patent is granted or rejected, on the fulfillment of the required conditions. See Section 2(j) of the Patents Act, 1970. Horticulture, as such methods are specifically excluded11. However, such applications have sometimes been granted patents, at least since the mid-80's as is evidenced by the process patent granted to Agracetus, a US company, on genetically engineered cotton cells and lines. This patent was later revoked in public interest by the government of India. India is thus, obliged to either introduce patents for new plant varieties or have an effective sui generis law to protect them by 1.1.2000. In addition India must make available strong patents on microbiological and non-biological processes for the production of plants and animals by 1.1.2000. However, India has time up to 1.1.2005 to introduce product patents on micro-organisms. India must also bring the protection of trademarks, geographical indications and trade secrets up to TRIPS standards also by 1.1.2000. The current law on trademarks, the Trade and Merchandise Marks Act, 1958 and the current jurisprudence, particularly under the common law tort of passing-off, is, by and large, in line with TRIPS. However, marginal amendments are required, as in the case of the registration of service marks and the recognition of well-known marks. In the case of geographical indications, the Trade and Merchandise Marks Act, 1958, allows for the registration of certification marks, certifying quality or origin of a product. Such certification marks can be registered by any body not producing the particular product, as, for instance, any association of producers or traders. In addition, geographical indications are protected under the common law tort of passing-off. Marks such as 'Champagne' for sparkling wine from France and 'Scotch' for whisky from Scotland have been successfully protected under this. However, India would need to legislate in order to give the higher level of absolute protection to wines and spirits required under TRIPS. In doing so, other Indian products or those of interest to India's trading partners can also be given this higher level of protection, perhaps on the basis of reciprocity. Although trade secret protection is available under common law and also laws on restrictive trade practices, India may have to introduce the legal basis to extend .See Section 3(h) of the Patents Act, 1970. See Rao, Niranjan, C., 'Plant Variety Protection and Plant Biotechnology Patents: UNDP funded Project LARGE, UNDP New Delhi, 1997, pp. 36-37 for a discussion on this patent. This suggestion is developed further in the last section of this paper such protection to cover third parties who directly or indirectly induce the breach of trade secrets. India would also have to legislate to protect undisclosed test data submitted for obtaining marketing approvals for new agricultural chemicals. India also proposes to introduce national legislation to implement the CBD through the Biodiversity Act, under which the terms of access to in situ genetic and biological resources would be governed.
8.1 Policy Direction -
The classical IPRs relevant to agriculture are patents, particularly on biotechnological inventions, plant breeders' rights, trademarks and geographical indications. Trade secrets and the protection of undisclosed test data are also considered to be part of IPRs now and these are relevant to the agricultural sector also. Farmers' rights and community IPRs are the forms of intellectual
property at the stage of initial conceptualization at the international or national level. India is not a member of the Paris Convention or UPOV but is a member of the WTO and is therefore, obliged to implement the TRIPS Agreement within the time limits set out therein. Most of the TRIPS obligations on these relevant IPRs, including strong process patents for biotechnological inventions, have to be in place by 1.1.2000, and it is only for product patents on micro-organisms that India has time up to 1.1.2005. Although legislative exercises on a sui generis system of plant variety protection began almost five years back, in 1993, the draft legislation is yet to be finalized. More recently, India has proposed the enactment of a biodiversity law to implement the CBD and this is in the process of being debated and finalized. An important question is whether the farmers' rights and community rights need to be included in the plant variety protection law or in the biodiversity law or both. Since the government of India wants to encourage investment by private seed companies, as evidenced from its policies since the mid-'80'S, plant breeders' rights would help in giving incentives for private research. The issue of whether public sector research institutions should be allowed proprietary rights over their research is still controversial, although having such rights and yet disseminating these technologies at reasonable prices are not necessarily contradictory. More importantly, steps would have to be taken to ensure the diffusion of the results of this research such that reasonable compensation is allowed to plant breeders. The deployment of skillfully drafted provisions on compulsory licensing and government use and the recognition of the mutual interdependence between public sector and private sector research efforts, may resolve the dilemma of incentives for generation and the subsequent diffusion of such technologies. At the recent ICRIER seminar many participants agreed that such proprietary rights would enable public sector research institutions to pre-empt private sector seed companies from not sharing commercial benefits on varieties derived from them and also maintain advantages in cross-licensing the results of their research.
The Consultative Group on International Agricultural Research (CGIAR) and the International Agricultural Research Centers (IARCs) can play a constructive role in the two-way transfer of technologies between the (National Agricultural Research Systems (NARs) and private sector seed companies. Several modalities have already been envisaged such as Material Transfer Agreements, licensing or cross-licensing, joint ventures or private funding of basic research in the public sector. On the issue of patents being taken out on the basis of traditional knowledge without acknowledging that this was already known before, there seems to be no other way but to document all such knowledge. The National Burzau of Plant Genetic Resources has set up a base collection of 1.60 lakh samples of germ plasm of various crop species in a National Gene Bank, aimed at being one of the largest ex-situ collections in the world38. The state government of Karnataka, in collaboration with the Indian Institute of Science, Bangalorz, has also launched a plan to map the biodiversity and traditional knowledge in its jurisdiction. In addition, the CSIR in India has already begun with a programmed to systematically document at least 400 species of plants whose therapeutic, agricultural and other uses39. However, much more needs to be done as this is a stupendous task. India has suggested in the WTO Committee on Trade and Environment that under TRIPS, there should be an obligation on patent applicants of biotechnological inventions based on genetic/biological resources or on traditional/indigenous knowledge, to disclose the country of origin and to reveal whether the applicant has prior informed consent40. This suggestion was also made in the European Parliament for inclusion in the proposed Biotechnology Directive but was rejected by the European Commission as going beyond its international obligations. Such a solution is necessary in international Intellectual property law if developing countries are to be notified and fairly and equitably compensated for resources and knowledge taken from them for commercial benefit. There is an urgent need to build international consensus on this issue.
The legislative exercises on amending the Patents Act, 1970, particularly on the patenting of biotechnological inventions should be made more transparent, with the involvement of all stakeholders such as agricultural and other scientists, farmer groups, private sector seed companies, lawyers, experts and NGO activists. Similar exercises are required to implement the TRIPs provisions on undisclosed information. This would not only require the conduct of workshops and the setting up of drafting committees but also the building up of mutual trust and respect, without which these would remain empty exercises. Recently, there has been a vocal demand made by sections of the media to introduce sui generis legislation for the domestic protection of geographical indications such as basmati rice. However, the important issue here is seeking protection for Indian marks in the markets of India's major trading partners, a possibility which is open under the laws of these countries, In addition a conscious effort needs to be made to invest in and build up the brand equity of Indian markets in order to ensure that such marks do not become generic. In addition, India should seek to conclude bilateral agreements with interested WTO members within the framework of the TRIPs Agreement, to give higher protection to products of mutual interest on a reciprocal basis. As long as this is done for specific geographical indications and as long as India is willing to conclude such agreements with other WTO members too, there appears to be no inconsistency with the m.f.n. clause of TRIPS. The CSIR has begun laudable efforts to improve patent literacy amongst its scientists. These efforts are being made by the ICAR too as there is a crying need to increase IPR literacy, not only in terms of laws, rules and procedures but also in terms of increasing the awareness on the long term benefits for the country, particularly from increased domestic R&D and productivity. While a full discussion and debate on legislation on IPRs relevant to agriculture is necessary both in the media and in civil society, TRIPS-compatible laws will mostly have to be in place within the next one year and a half or so. It is clearly time to enact the required legislation and the implementing rules and regulations, incorporating all the flexibility allowed under TRIPS, before time runs out. At the same time this exercise should be done with as much transparency as possible to allay the fears raised so far in the public debate. This paper does not make any claim to a complete or exhaustive list of all that needs to be done for IPRs in agriculture in India. It merely emphasizes the immensity of the tasks that remain to be done in the light of the sharp differences of opinion amongst the stakeholders and underlines the fact that both national and international organizations have to gear up to contribute to this exercise in an urgent and meaningful way.
8.2 Awareness Generation and Literacy in IPR
Realizing that awareness generation is important for confidence building in order to accept and apply IPR in agriculture and to naturalize the IPR culture, an intensive campaign should be launched to this effect, at all levels and for all relevant sections of the society. Increased general awareness should be brought out in public to enable them to respond to various opportunities, challenges and threats. Elaborate awareness tools—compact discs (CDs), documentary films, newspaper features and advertisements should be developed and widely disseminated in all languages through mass media. Issues and concerns, scope of application of IP protection in one form or the other, or in conjunction, various exceptions and exemptions, procedures and rules in the Indian and global contexts in easy to understand, simple language and comparisons with other countries on case-to-case basis must be analyzed and presented for public appraisals. Recognizing the absence or paucity of case laws, simple illustrations should be made for FAQs like what, where, why, how, have and have-nots. Potential benefits should be explained and, at least, hypothetical examples
made in relation to facilitated access to genetic resources and benefit sharing,
judicious application of legislative, regulatory and administrative provisions related to IPR laws, and monetary rewards or sharing of licence fee and royalty for saleable intellectual property generated by the employees in the course of R&D. _ In order to help increase the IPR literacy in agriculture and allied sectors, compendia on IPR protection and technology transfer should be published for wide distribution. Such compendia should cover rules, procedures, forms, guidelines, other important tips and selected case studies on various provisions, admissibility and application, infringement and remedies for various forms of IPR protection in accordance with different domestic laws and also in comparison with other country laws. Recognizing that the IPR management in agriculture requires a broad portfolio management that includes the fundamental need to link IPR protection with licensing, technology transfer, up scaling, commercialization and safeguards, all concerned institutions/organization should generate, publish and widely disseminate relevant information and common literature on IPR in agriculture in the form of brochures and technical bulletins, etc.
8.3 Agriculture IPR Education, Training and Human Resource Development
Emphasizing on the need to educate children—potential inventors and innovators of future years, it is time to think of developing suitable curriculum right from the, school level. Based on short stories, poems, letters, essays and short plays, these curricula should be developed in simple language and in interactive and illustrative modes. Concerned government departments and agencies should invite contributions to this effect and announce suitable and impressive awards for the selected entries. ICAR may take lead and recommend the awarded entries for inclusion in the syllables of the Central Board of Secondary Education and the Boards of Education in various states. In order to enhance the level of higher education in the country for IPR in general and IPR in relation to agriculture in particular, there must be at least one compulsory course at the undergraduate and postgraduate levels in all agricultural universities and deemed universities, and also in the law colleges all over the country. Further, an LL.M. degree programmed should be started in ‘IPR laws in relation to Agriculture’ at various law colleges in the country. Summer and winter schools and periodic training programmed should be conducted in the country for teachers, scientists and technical staff in order to enhance national competence to appropriately address the area of IPR in agriculture and allied sectors. Appropriate modules should also be developed for foundation level training and advanced orientation of concerned scientists at selected institutions on regional basis and at other related Centers of Advanced Studies at the ICAR institutes and the SAUs. Human resources in the ICAR institutes and the SAUs should be developed and strengthened in order to help efficient application of IPR in agriculture and allied sectors. Focused attention should be given in the national agricultural research system for the in-country on-job training for skill upliftment and also need-based exposure of Indian scientists to the relevant scenario in other countries. Adequate funding should be provided at the central and state levels to ascertain the much needed promotion of HRD.
8.4 Strengthening the Institutional Mechanism—Legal, Regulatory and Administrative
Recognizing that it is important to establish an IPR regime that would provide confidence in and workability for the protection of IPR in relation to agriculture and allied sectors in the country, high priority should be accorded to the process of completing the required legislative provisions and also the notification, functioning and strengthening of national institutional mechanisms corresponding to various Acts, such as the respective Controllers, National Authorities, Tribunals, Registries, etc. Further recognizing that the IPR Acts mainly relate to techno-legal matters, their governance should be controlled by eminent scientists with wide experience in relevant fields and the Tribunals should also have technical members. The National Authority on Protection of Plant Varieties and Farmers’ Rights Act, 2001 (PPV&FR Act, 2001), should have an eminent plant breeder as its chairperson. Enforcement of new Acts and Amendments related to IPR in agriculture should be speeded up. This requires finalization of Rules and Procedures for the PPV&FR Act, 2001 and the Geographical Indications (Registration and Protection) Act, 1999 (GI Act, 1999). Government should take note of the recommendations made by the NMS on the implementation of PPV&FR, 2001 and also the draft Rules and Regulations developed as a result of the FAO-MSSRF Consultation. The final draft rules and procedures for the GI Act, 1999, should be circulated for expert opinion on areas concerning agriculture and the allied sectors. Enforcement of Patents (Amendment) Act, 2002, should be done early to protect inter alia the wealth of agriculturally important microorganisms in the country. The designated repository should be equipped well and strengthened as per international standards. Similarly, enforcement of Amendment Acts related to Copyrights and Trademarks should be accorded a high priority to help derive the best benefits. _ Recognizing that the protection of undisclosed information is the only form of IPR listed in the TRIPs Agreement for which there is no corresponding direct law in the country, and further reiterating such intergovernmental commitment, legal consultation process should be initiated to firm up the contextual position and decide the course of action. Development of related laws, such as, enactment of Biological Diversity Bill, 2000, should also receive attention. Appropriate legal instruments related to conservation, maintenance, trade and sustainable utilization of animal genetic resources should be brought about. Simplified regulatory procedures for relevant application of IP protection and also for seeking any prior informed consent (PIC) on mutually agreed terms (MAT) for access to genetic resources and equitable sharing of benefits should be developed. It is recommended that parallel laws like the Seeds Act should be strengthened as they help in better application and enforcement of particular IP laws, such as the PPV&FR Act, 2001, in order to support effective implementation of sui generis system of protection. Similarly, Contract Law should be reviewed to strengthen the law on Trade Secret, and the law related to land ownership of small farm holders should also be strengthened to judiciously implement the farmers’ rights. Recognizing that the institutional development and strengthening is inherently complex in nature and also that it requires time, resources and will to develop institutional culture, short and medium term fiscal plans should include provision for resources that would help in meeting the costs of adjustment. Commitments by successive central and state governments should ensure availability of recommitted resources in the techno-legal area. Management and Information Services should be strengthened in the ICAR institutions and SAUs in order to change their basic approach to research and IPR protection. Facilities should be established and strengthened for identification of relevant research areas through patent search, literature survey, UPOV database search etc. Early and conflict-resolving information services should be set up in the broader context. Inventors and innovators should be provided with their share commensurate with the worth of a commercialized invention whereas incentive should be given to all inventions whether processes or products in order to ensure a viable, dynamic and effective national institutional mechanism of IP management. Elaborate Clearing House Mechanism (CHM) should be developed and strengthened in relation to IPR in agriculture, encompassing all possible information on basics, thematic areas, related treaties, conventions and agreements, historical to current events and future activities. It should also have copies of all Indian Acts related to various forms of IPR, their rules and procedures, forms, guidelines and other important tips. A site on the Internet should be dedicated to this CHM and various notifications, case studies, with periodic updating of other relevant information.
8.5 Strengthening the Policy Area
Recognizing that the principal policy area related to protection of IPR in agriculture and allied sectors is the competitive commercialization of technologies, attention should be given to further liberalization of agricultural markets, promotion of private sector investment and more efficient technology systems. Codes and procedures for rewarding the concerned partners and stakeholder scientists should be developed in the ICAR, the SAUs and other concerned institutions to bring IP culture in the NARS. This may be commensurate with the gains accrued. Alternatively, a fixed proportion, at least 40 per cent of the earnings, should be given to the scientist concerned or shared among the research partners as is presently being followed in the Council of Scientific and Industrial Research (CSIR) institutes. Recognizing that high priority should be given to strengthening of support services in farm enterprises, extension, training, research and quality control, public interventions in agriculture should focus on market intelligence, technology forecasting and early warning systems. A centre for forecasting market trends and the status of the national and international markets should be established to enhance the prospects and sustainability of competitive Indian agriculture. Marketed technologies should be developed, protected and commercialized to harness greater returns on the investments made. There is a strategic need to increase growth-enhancing public investment, besides capital formation in agriculture, and promoting private sector activities and resource contributions. Essential ingredients must be put in place to bring much needed commerce in Indian agriculture. Whereas agriculture is deregulated as a result of the ongoing reform process, the lowest income groups should be continuously protected in accordance with clearly defined policy and directives by direct and indirect support programmed. Recognizing that in the absence of proper legal framework, misuse, abuse, overexploitation and non-judicious utilization of animal genetic resources is rampant, particular attention should be given at the national and global levels. There should be intergovernmental negotiations to address issues like the trusteeship/ownership of animal genetic resources in various gene banks and the legal frameworks for the databanks, including acquisition of the classified data on animal genetic resources. In order to avail of maximum IPR-linked opportunities in competitive agriculture, India must continue to contribute towards development of a level-playing field at the intergovernmental platform between the developing and the developed economies. In the ongoing negotiations at the World Intellectual Property Organization (WIPO) for IPR in relation to genetic resources, traditional knowledge and folklore, NARS experts can play a vital role which needs to be capitalized by the government.
8.6 Harnessing IP-linked Technical Opportunities in Agriculture
Trademarks should be extensively used for brand development in agriculture. Genes and gene sequences, amino acid sequences, antibodies, etc., should be protected by copyrights until there is opportunity to patent and commercialize these products. Judicious application of other forms of protection should be done as and where applicable. Protection of IPR in all cases should be essentially linked to commercialization, sharing of royalty and other benefits, and further enhancement of relevant R&D. Appreciating that the agricultural research community should create/innovate, protect, and commercialize their new technologies on continuous and incremental basis, other important national responsibilities, like sustainable development, empowerment of economically weak farmers, and protection of their traditional resources and knowledge should also be prompted on high priority. Quick action should be taken to record and document farmers’ varieties in the country as available over space and time and the traditional knowledge associated with their use. IP linked technical opportunities in agriculture may be extended to applied management of genetic resources including microorganisms. Biotechnological advances should be integrated with genetic resource management where feasible to identify copyright and document unique genes or gene sequences. Recognising that the germ plasma registration of PGR is in practice, specifications and guidelines should also be developed for breed registration of farm livestock.
At least five per cent of the research budget in agriculture should be allocated to protect the public sector R&D for sustainable IPR portfolio management, and technology development and mobilization in agriculture. Where certain technologies are considered important for food security and well being but significant avenues do not exist for IPR protection and commercialization, development and deployment of public goods must continue to be done by the public sector R&D.As the IP protection is likely to be far more stringent in the years to come, agricultural markets should be constantly monitored and suitably reorganized at an appropriate time. Timely, corrective steps should be taken based on critical gaps, including the kind of IP scenario likely to emerge in future._ Competitive funding schemes should be encouraged to develop research links between profit-making and non-profit making research institutions and to build bridges between the use of propriety and public domain resources and technology.
8.7 linkage and Cooperation
Mutually supported testing of technologies should be encouraged by a change in attitude and mindset in public, public-private or private-private partnerships to address high proportionate initial costs and risks, particularly that of the biotechnological R&D. Active partnerships should be further encouraged in exploring the new tools of applied genomics to understand and improve the biological systems in public interest. In order to provide encouragement for the public-private partnerships in true spirit, minimal codes of procedures should be developed and applied in different key areas of partnership. On selective basis, corporate culture should be brought about in some public sector institutions. Confidence building should be accelerated in cross-sect oral partnerships. Feeling of uncertainty in partnership calls from across the public and private sectors should be minimized. More opportunities should be provided for frequent interaction among the agricultural scientists, research institutions, agricultural industrial sector and entrepreneurs. The private sector should also complement the basic and strategic research by the public sector through appropriate funding and resource sharing. Voluntary or concessional legal advice may be provided in partnership deals of strategic importance to enhance competitiveness of Indian agriculture and to attend to the problems of uneven-playing field among the resource-rich and resource-poor potential partners. A common platform should be provided on sustainable basis to seek assistance from the attorneys and lawyers having reasonable agricultural R&D background. Besides, outsourcing for legal advice on case-to-case basis in order to competently address the techno-legal area of IPR protection in agriculture, the ICAR and SAU set ups should appoint law officers in their IPR Cells in order to strengthen their institutional mechanism for IP protection. Realizing the importance of jurisdictional limits in respect of the application of IPR laws and the situations concerning enforcement and discipline, control of agribusiness abroad should be addressed by all concerned in a national spirit. Agencies like APEDA, FICCI and CII should earmark
resources and funds to meet the contingent needs for relevant transnational IPR cases involving the Indian agricultural sector and to provide emergent support on case-to-case basis.
8.8 Origin of the material and access to benefit sharing
The farming community contributions have to be recognized and rewarded and benefit sharing should become mandatory through the gene fund created under the PPV&FR Act 2001. The FAO-promoted International Treaty on Plant Genetic Resources for Food and Agriculture, Article 18(4) (d) deals with funding strategy ‘each party agrees to undertake, and provide financial resources for national activities for the conservation and sustainable use of plant genetic resources for food and agriculture’. So the national programmed shall meet the expenses involved in germless sustenance. Article 13(2) elaborates the benefit sharing mechanism. It further elaborates that ‘the recipient who commercializes a product that is a plant genetic resource for food and agriculture and that incorporates material accessed from the multi referred to in Article 19(3)(f), an equitable share of the benefits arising from the commercialization of that product except wherever such a product is available without restriction to others for further research and breeding, in which case the recipient who commercializes shall be encouraged to make such payments’. It appears that selections made by the National Agricultural Research Systems (NARS) and private plant breeding from the various CGIAR materials, if released for cultivation and restricted from sharing with others due to property rights reasons, then as per the Treaty third party benefit sharing will become mandatory.
8.9 The need to protect Traditional Knowledge
The TK is not well documented to stand as supportive evidence to validate the element of invention or discovery or novel methodology involved in product development or the development of a craft. Lack of documentation of indigenous farmers’ plant breeding is attributed as a major reason for failure to consider the possibility that farmers have an intellectual investment in their folk varieties. There are several issues connected with biodiversity, rural peoples’ medical knowledge, plant genetic resources, farmers’ variety and GI. Traditional Knowledge is a point to prove that it is prior knowledge or common knowledge and the element of invention or discovery or novelty is not there in cases with neem, turmeric, ginger, etc. and hence patent applications making a claim of originality needs careful examination. Considerable effort has gone in, during the last decade or so to document the traditional wisdom on these issues available in various India languages. India must straighten out these issues in the various international negotiations and press the need for considering before a patent is granted to a product in the convention countries. India should develop a system to grant community rights to the TK similar to what PPV&FR Authority is granting for farmers’ variety.
8.10 The Public debate in India on legislative changes on IPRs:
Given the importance of agriculture in the Indian economy, there has been extensive public debate of an intensely political nature, on certain legislative changes required to implement TRIPS as related to the agricultural sector. These relate to the institution of plant breeders' rights, patents for biotechnological inventions and geographical indications. In addition, the implementation of the CBD to establish the so-called 'farmers' rights'15 and the fair and equitable sharing of benefits on commercialization of biological/genetic resources and traditional knowledge and practices originating from India, has also been controversial. This public debate has been characterized by some degree of confusion in intermingling these various issues. Guided by NGO activists, political parties or at least some leading political personalities, cutting across political affiliations ranging from the left to the right, have taken entrenched positions, forcing policy makers to consult such activists while finalizing the legislation on IPRs.
It has been well recognized that the initiatives for introducing plant breeders' rights were made by the private seed companies in India in the late '80's after the adoption of the New Seed Policy in 1988. With this policy the government of India liberalized the import of seed for joint ventures, including hybrid seeds, for a number of important crops. Throughout this paper the expression `farmers' rights' has been used in the sense given in the FAO undertaking of May 1989 as "rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources". This is distinguished from the term `farmers' privilege' which is used to denote the freedom of farmers to save seed as planting material or for limited commercial exchanges i.e. the so-called `across-the fence' sales. Liberalization, including the development of hybrids, does have a positive impact on private research and development in this sector16. However, others forecast that the increasingly proprietary nature of plant biotechnologies and the decreasing role of International Agricultural Research Centers (IARCs) and national research centers will adversely affect the diffusion of such technologies. The two aspects of incentives for generation of and for the diffusion of IPRs are not irreconcilable. In some circles in India the new policies were seen as a victory for multinational enterprises (MNEs) in spite of the fact that there were certain conditions regarding the transfer of the parent lines and critical breeding materials to the Indian partner of the joint venture19. In particular, the TRIPS negotiations of the Uruguay Round of Multilateral Trade Negotiations where US, Europe and Japan were demanding stronger Intellectual property protection, especially in the area of biotechnology, was seen as an attempt by Northern MNEs to privatize the genetic diversity of the South20. There were vociferous protests by some NGO activists against India's manner of conducting trade negotiations.21 The TRIPS proposals were seen as patenting of life itself, raising ethical as well as socioeconomic questions.
See Pray, Carl and Tim Kelley, 'Impact of Liberalization and Deregulation on Technology Supply by the Indian Seed Industry', draft of a World Bank financed project, dated 27 October, 1997 (available on file with author). At the ICRIER Seminar, the representative of Monsanto categorically stated that despite policies to encourage private sector investment in the seed sector since 1989, such investment was forthcoming only in hybrids and not in self-pollinated crops. IPR protection was required not so much to protect against theft by farmers but against misuse by other private sector seed companies.
It was felt in the ICRIER Seminar that such negotiating teams should have included experts in agriculture and biotechnology. However as the author is aware, such experts were consulted in government in formulating position for the negotiations in WTO, although the adequacy of such consultations can be the subject of debate. Another aspect raised was the continuity of trade negotiators to ensure continuity in negotiating strategies, a problem not unique to India alone.
An association of farmers in the Southern Indian state of Karnataka attacked the US multinational seed company, Cargill Seeds, in early 1993, protesting the entry of multinationals in the domestic seed industry. It was feared that the prices of seed would skyrocket and threaten the food security of the country. This incident and the subsequent farmers' rally on March 3 1993 at Delhi marked the height of the protest against the plant variety clauses of the TRIPS Agreement (the so-called Dunkel Draft). The Bharatiya Kisan Union (an all-India farmers' organization) even drew a parallel between these clauses and the take over of the country historically by the British East India Company23. The case of the patent on products derived from the 'neem' plant was used to demonstrate the theft of traditional knowledge by multinationals and the consequent disastrous consequences for Indian farmers who would not be able to use 'neem' seeds. It is only much later that some of the myths on the neem based patents of W.R. Grace were adequately clarified24.The attempts made by the Ministry of Commerce to clarify that India did not have to accept the patenting of plants and that the sui generis system could be devised to take care of national interests25 did not convince the NGOs and activists as they suspected that the term 'effective' would be strictly interpreted to ensure patent-like protection26. Even an article written by the then Director General of GATT, Mr. Peter Sutherland, clarifying that standards contained in UPOV, 1978, which allowed both the farmers' and the breeders' privilege, could reasonably be said to constitute effective sui generis protection, failed to assuage these fears. At the ICRIER Seminar Dr. Sahai opined that the provisions of Article 27.2 of TRIPs could be used to exclude patenting of life forms. However, it was pointed out that in such a case there could be no commercial exploitation either of such inventions February, 1996.
Nevertheless, not all stakeholders were in agreement as agricultural scientists and some farmer activists were expressing different ideas on this subject. They opined that India was capable of turning the TRIPS proposals to its advantage due to the huge skilled manpower, variety in agro-climatic zones and facilities in agricultural research and that the farmers had nothing to fear and may only benefit from the implementation of these proposals.
The M.S. Swaminathan Research Foundation, Madras, and the Research Foundation for Science, Technology and Natural Resource Policy, New Delhi (later changed to RFSTE, for Research Foundation for Science, Technology and Ecology) were consulted on the 1993 draft legislation on the protection of plant varieties by the Ministry of Agriculture. The Swaminathan Foundation prepared an alternative draft legislation relating to plant breeders' and farmers' rights which was discussed at a workshop conducted by that organization in late 1993 and sent to the government of India after some modification. This draft attempted to reconcile the TRIPS Agreement with the CBD and the FAO's International Undertaking on Plant Genetic Resources, 1989. It called for the setting up of a National Community Gene Fund as a mechanism for rewarding farmers. It recognized that it was difficult to deal nationally with the issue of farmers' rights and that it was necessary to evolve an international consensus on this issue.
India must show the way by attempting to include this concept in national law first and then later attempt to do so in UPOV30. The Research Foundation for Science, Technology and Ecology went further and suggested that farmers' rights should set the limits to the IPRs generated by the seed industry. Given the public outcry on plant variety protection, the government of India decided to make the draft legislation open for debate in early 1994. This draft was bitterly criticized for following UPOV, 1978, even when TRIPs did not require this and its attempt to balance this aspect with the inclusion of provisions on for instance, the evidence of ICAR and IARI scientists, including Dr. M.S. Swaminathan, ex-Director, ICAR, and that of Sharad Joshi, farmer activist, before the Parliamentary Standing Committee on Commerce (1993-94) cited community rights and farmers' rights and extensive provisions on compulsory licenses failed to assuage the fears raised.
The Ministry of Environment and Forests (MOEF) in the government of India, which deals with the CBD, came under tremendous pressure from public action groups to institute implementing legislation for the CBD. It proposed legislation on biodiversity to regulate the access to in situ genetic and biological resources, on conditions of prior informed consent, on fair and equitable sharing of benefits and on transfer of technology on fair terms. Given the experience on the legislation for plant variety protection, it was decided to constitute a committee headed by Dr. M.S. Swaminathan and comprising of all the major stakeholders, including scientists, NGOs, environmentalists and other relevant government departments/ministries. Regional seminars are being held to discuss the various issues involved in the legislation although the draft bill itself has not been made public32. The issue of community rights is sought to be resolved now in the proposed Biodiversity Act and not in the legislation on plant variety protection, although there is still considerable confusion on this issue.33 This is, however, being strongly opposed by NGOs that have been active in this debate, such as the RFSTE and the Gene Campaign. The process of consultation is still on in the MOEF.
A revised legislation on plant variety protection, removing the issue of farmers' rights, as drafted earlier but retaining clauses on farmers' privilege and breeders' exemption, was attempted in 1997. This revised draft has been criticized as being modeled on UPOV 1991 and as deleting the farmers' rights altogether.
Either there seems to be little awareness that the draft biodiversity legislation intends to tackle this issue and thus, it is being concluded that India has given up the concept of farmers' rights or there is a conviction that farmers' rights have on Access to Biodiversity and Benefit Sharing: Incentives, Innovations.
Evidence of such confusion was seen at the ICRIER Seminar where many were confusing farmers' rights with the farmers' privilege. While it is yet not clear whether the farmers' rights will from part of India's legislation on plant variety protection, the latter is clearly within its ambit. However, with the Monsanto Corporation's purchase of the terminator technology (reported on RAFI's website www.rafi.ca) the utility of the farmers `exemption clause is being questioned to necessarily be juxtaposed against the IPRs granted to seed companies in the same legislation. It is as yet not clear how this issue is going to play out in India. In the meanwhile, it has been reported that some major European plant breeders have threatened to deny access of new rose varieties to Indian floriculturists if there is no protection of breeders' rights. The concern expressed was not just on the royalties lost but on the effect on the quality of the flower if illegal propagation and multiplication of the variety was allowed.
Similar exercises to involve the stakeholders in the drafting of legislation on biotechnological inventions have not yet been initiated by the Department of Industrial Development charged with the task of amending the Patents Act, 1970 to bring it in line with TRIPS by 1.1.2000. The public debate on this subject has not so far dealt with the detail required to implement legislation in this area. This is also the case for the protection of undisclosed information, whether trade secrets or test data. An area of IPRs related to the agriculture sector that has raised considerable controversy in India recently is geographical indications. This issue occupied the centre stage in the context of the patent granted in the US in September 1997 to Ricetec, a US company, on the claim of novel basmati rice lines and grains. In this case most Indians believe that India should have a strong law on the protection of geographical indications so that Indian names are not patented and misused for economic gain in India's export markets.
8.11 Protection to Agriculture Sector.
The ever-increasing integration of the world's economies has resulted in the apparent institutionalization of 'liberal' trade values. Organizations, the most prominent of which is the World Trade Organization, advocate (and often enforce) so-called 'free-trade,' arguing with considerable justification that it can facilitate economic development in both the developed and developing worlds, albeit to differing extents. Theoretically, the liberalization of developing countries economies will allow those countries to obtain the benefits of specialization that accrue, according to the principle of comparative advantage. This contention is invalid, however, if the liberalizing countries are denied access to international markets. Such is the predicament facing much of the developing world.
While developed countries vigorously advocate trade liberalization in those industries in which they have a comparative advantage, they are notably more reluctant to do so regarding industries in which they are less competitive. Efforts to liberalize trade in these industries have been largely characterized by 'foot dragging' on the part of developed countries and a plethora of justifications for protecting and subsidizing those respective industries. Agriculture, an industry of utmost significance to the majority of less developed countries is one of the most, if not the most, distorted and protected sector of the global economy. Daniel Griswold of the Cato Institute notes, for instance, that "the average tariff on manufactured goods has today fallen to about 5 per cent worldwide, while tariffs on agricultural goods top 40 per cent.1" This is a tragic irony, since agriculture is a source of comparative advantage for numerous less developed countries. The significance of this statistic is further highlighted if one notes that the vast majority of the world's poorest people reside in agricultural areas.
The European Union, which "controls 38% of the world's agricultural trade 2" is particularly culpable of 'agricultural protectionism' and market distorting policies in its agricultural sector. 'Agricultural protectionism' in the European Union takes many guises, such as "domestic support policies, import barriers, and export subsidies,3" to name a few measures. In fact, the European Common Agricultural Policy accounts for almost half of the European Union's budget. This results in significant distortions in both European and international agricultural markets. This article will therefore investigate some of the means by which the European Union protects its agricultural sector as well as some of its justifications for doing so. It will also examine the impact this has on developing countries and the ways in which it undermines their capacity to initiate and sustain viable economic development programmed.
While Europe's Common Agricultural Policy currently accounts for less than half of the EU's budget, where it once accounted for two-thirds, this is still a remarkable state of affairs for an industry whose farmers "make up less than 5% of the (European) labor force and contribute less than 2% of GDP.4" According to OECD figures, "in 1999 the EU paid out an average subsidy of $17,000 to every full time farmer in the Union.5" The economic costs of these subsidies are significant. The Institute for Economic Affairs in London, for example, estimates "that the costs of the Common Agricultural Policy are about $75 billion a year, with $49 billion borne by the EU countries and the rest by other countries.6" While this policy makes little economic sense, it is political expediency that ensures its continuation. As Grady and Macmillan point out in their book 'Seattle and Beyond,' "We all have our sacred cows. In Canada, our dairy sector is highly protected along with poultry and egg producers. The sacred cow in Japan and in Korea is rice farming; in the United States it is the sugar and peanut sectors; and in Europe virtually anything that grows is sacred."
That is all well and good but on what pretext does the EU justify the protectionism of its 'sacred cow.' The answer can, to a great extent, be summed up in one word: 'multifunctionality.' According to Daniel Griswold, the EU argues that "agriculture deserves government support because its functions reach beyond merely producing food to include a number of 'positive externalities' that benefit society as a whole, such as conservation and rural development.8" This argument is flawed for two reasons. Mr. Griswold points out the first, noting that these 'positive externalities' "must be weighed against possible negative externalities such as pollution from pesticides and fertilizers.9" It stands to reason that agricultural support policies, tariff barriers and large direct subsidies, will encourage more intensive farming in the European Union. There is therefore increasing concern that "such intensive farming, encouraged by the CAP, damages the environment and public health.10" Is it not somewhat ironic that the CAP largely ignores negative externalities exacerbated by its policies, while dwelling on the positive ones?
The second flaw in the 'multifunctional' argument is that numerous other industries and sectors of respective economies could equally 'stake a claim' to 'multifunctional.' Agriculture is not the only sector, which yields positive externalities. In other words, the implications of the 'multifunctional argument' and its potentially widespread applicability could result in the effective protection of numerous industries.
The costs of agricultural protectionism in Europe and elsewhere (most notably, the United States and Japan) are tremendous. Indeed, "research by Kym Anderson, of the University of Adelaide, suggests that stripping such distortions from the OECD's agricultural policies would boost global agriculture by more than half, making the OECD and the developing world $160 billion better off between them.11" Jorge Campbell, the Argentinean secretary of International Economic Relations, estimates that "Latin America has lost more than 215 billion dollars in exports since 1970 as a result of agricultural subsidies in wealthy countries.12" Brazil for instance, according to the Permanent Forum of International Agricultural Negotiations, would earn an additional $6 billion per annum if agricultural protectionist policies were eliminated in developed countries.13 These are but a few examples of a global phenomenon: agricultural trade restrictions hurt producers in both developed and developing countries.
The removal of agricultural trade restrictions would facilitate economic growth in numerous less developed countries, by providing them with significantly increased markets for their products. However, the elimination of agricultural subsidies would have another effect. It would significantly increase global prices for numerous agricultural products. This is because "generous compensation payments tied to agricultural production (have) prompted enormous increases in output14" in the EU. The resultant surpluses have depressed global agricultural prices for numerous commodities. It has been estimated that the elimination of agricultural protectionism could raise food prices by as much as 5% over a decade.15 Needless to say, this could have an adverse effect on those developing countries, which are net importers of food. However, it would also increase incentives for investment in agriculture, both in developing countries and elsewhere. Faced with rising prices, farmers in developing countries would undoubtedly increase their production, as indeed they have consistently done when governments have reduced or eliminated policies, which artificially depress agricultural prices. As the Assistant Director-General of the Food and Agriculture Organization (FAO) Hart wig de Haen notes, "over the longer term the depressed prices have led a number of net food importing countries to neglect their own agriculture in public policies.16"
Investment Increased investment in the agricultural sector, facilitated by rising prices for agricultural products, would have three beneficial effects in developing countries. It would "generate (increased) rural income, increase foreign exchange through agricultural exports and increase food production for domestic markets.17" These benefits would result in equally beneficial 'multiplier effects,' such as decreasing rural-urban migration. This could, in turn, have a positive effect regarding urban unemployment, for instance.
While the EU, Japan and the United states are all culpable of protecting their agricultural sectors, it has been estimated, albeit by the US Department of Agriculture, that the European Union "accounts for 85 per cent of export subsidies worldwide.18" Indeed, such is the continued protectionism of global agriculture that Grady and MacMillan ('Seattle and Beyond') state that agriculture has "remained largely outside the multilateral trading system.19" Whether or not one accepts this contention it is certainly the case that agriculture has been afforded more protection than most, if not all other sectors of the global economy. For example, "agricultural products were the only products that received exemption from the general ban on export subsidies in the General Agreement on Tariffs and Trade."
One of the many ostensible justifications for agricultural protectionism in the EU relates to product standards and sanitary restrictions. Outbreaks of BSE and the recent 'foot and mouth' epidemic have highlighted the importance of maintaining stringent standards regarding agricultural trade. The Sanitary and Phytosanitary Agreement, which is accorded international legitimacy by the WTO, therefore ensures that "a country is able to restrict imports if they compromise human, animal or plant health." That this is an important clause hardly needs stating. However, as the Economist notes, "there is a fine line between protection and protectionism, and it is tempting for local producers to keep out foreign competition by invoking food safety or environmental concerns." European import restrictions regarding genetically modified crops may be a case in point, although the verdict is still pending regarding the safety and health implications of these crops. Indeed, scientific disputes have been at the heart of agricultural protectionism in the EU. They have featured, to a large extent, in the "agricultural trade wars," in which Europe and the United States have been so prominently engaged in recent years.
A more straightforward, though equally contentious issue, is the stubbornly high tariff restrictions the EU places on a number of agricultural products. It should be noted that "progress has been made reducing tariff barriers on unprocessed tropical products like coffee, tea and cocoa." However, much less progress has been made on reducing tariff barriers on those products, which the EU countries produce themselves. This is perhaps unsurprising. Nevertheless it is evident that, "many more developing countries would benefit if similar improvements in market access were granted for other agricultural products such as temperate zone horticulture, sugar, cereals and meat, as well as for processed agricultural products." Reform of the Common Agricultural Policy is currently underway, albeit at a relatively slow pace. There has, for example, been a significant "conversion of non-tariff barriers into tariffs " following the Uruguay Round of negotiations of the WTO. According to Merlinda Ingco of the World Bank, "liberalization is implicit because countries are prohibited from arbitrarily raising tariffs to higher new levels." However, as she subsequently points out, "many of the newly established tariffs are so high as to effectively prohibit trade." Nevertheless reforms are being incrementally adopted. Developed countries have, for instance, reduced their export subsidies "by 36% of their 1986-88 value for most commodities," following the Uruguay Round Agreement of the WTO. CAP reforms have also been adopted regarding price supports. Reforms adopted in March 1999, for example, ensured that "price supports for grain farmers would be cut by 15 per cent in two equal annual installments beginning in 2001-2002." Part of the reason for this limited liberalization is the imminent incorporation of several Eastern European countries into the EU and the increased costs this will entail regarding the CAP. Political pressure, most notable from the United States and the 'Cairns Group' (an association of 15 countries "fed up with....a global system that had made agriculture the most distorted sector of world trade30") has also facilitated reform.
Although agricultural protectionism in the European Union is justified on numerous grounds, it has an extremely distortion effect on global agricultural markets. Significantly, "The European Union is the world's largest importer of agricultural goods and the second largest exporter." Its policies are a serious impediment to economic development in much of the developing world. While "developed countries farm subsidies amount to over $360 billion a year32" it is worth noting that this figure is some "$30 billion more than Africa's entire GDP." Such is the extent of distortions in global agricultural markets.
The reality is that developed countries, which vigorously advocate trade liberalization in those industries in which they enjoy a comparative advantage, are culpable of restricting trade in those industries in which they are less competitive. Agricultural protectionism in the European Union is a case in point. While lecturing poorer countries on the merits of 'free trade' the EU adopt policies, which inhibit the 'free trade' of agricultural products. This is ironic, to say the least. Although liberals advocate free trade as an inalienable human right, many countries appear only to adhere to its principles when it is expedient to do so.
8.12 Vital Role of the Public Sector and the CGIAR System
The public sector in India has been playing a predominant role in plant breeding efforts. While some felt that the public sector should be mainly oriented towards rendering service to the small farmers and should not be motivated by profit, others felt IPRs should be taken by such institutions to reward individual scientists' efforts. Some felt that IPRs would help in public sector research institutions staking their claim on their research and preventing the private sector seed companies from appropriating such research. On the suggestion of the National Agricultural Research Systems and hence it was better for change to come from within the countries rather than through the understanding .
8.13 Farming systems reformation
Some NGO concerns about the effects of IPRs on different and diverse farming systems focus on the ecological sustainability of these. A stronger IP regime is expected to promote a tendency to intensive farming systems supplied by private sector breeders with reduced levels of biodiversity. Others are concerned about the impact of IPRs in the process of generating new technology in developing countries and on small farmers. They feel patenting - gene patents and variety patents - locks up and directs agricultural research in a direction that is not small farmer friendly. Small farmers are not helped by the new technology but rather the new technologies help their competitors in more favored areas. Although it is the CGIAR’s role to redress that balance to small farmers in marginal areas, its capacity to do so may decline. These concerns in part depend upon the vision of agriculture and the place for small farmers and those in disadvantaged areas in it. For farming systems provide livelihoods not just products and the impact of IPRs on the sustainability of the livelihoods of those engaged in agriculture today is worrying some in developing countries and in agricultural research. They fear IPRs may bolster trends which add to the rate at which many of today’s small farmers in developing countries are marginalized and forced off the land. That may be all right if they want to go, if policy makers want get rid of them and if there are jobs for them, but as some interviewees made clear that was not necessarily the case.
The broader point is that technologies are not neutral nor simply tools - they embody social and power relations which benefit some and disadvantage others. Their effects extend both in space and time. The temporal dimension - with its importance for intergenerational and ecological effects - is a much neglected aspect of genetic engineering according to Barbara Adam141. IPRs are seen by their critics as promoting the development of genetic engineering, and an industrialized intensive approach to agriculture, likely to lead to marginalization of poor farmers and poorer areas and also to reduce agro biodiversity. This is disputed by the seed industry which argues that modern varieties contain within them a wide diversity of genes. development of the many highly-productive commercial varieties available to farmers today. These have a range of yield, disease and stress tolerances that make agriculture as productive as it is. The industry is, therefore, strongly supportive of the provisions in TRIPS 27.3(b) which requires protection to be provided for plant varieties. In general they favor use of Plant Breeders Rights as developed in the UPOV system. Some in the industry, notably those connected with the use of genetic engineering and in the USA, support patenting as the means to secure protection of their investment in new varieties. They believe strong IPRs are needed to ensure returns on the investment required to develop future plant varieties and animal breeds using genetic engineering. Patenting of varieties under US law does not allow for a breeder's exemption, meaning that a patented variety may not be used for further breeding, without the agreement of the patent holder. Moreover, there is a difference between EU and US regarding the patentability of plant varieties. In Europe, because of the existence of UPOV, the European Patent Convention does not permit the patenting of varieties. The European Patent Convention expressly excludes plant varieties from patentability. In 1995, a ruling of the EPO Technical Board of Appeal determined that a claim for plant cells contained in a plant is unpatentable since it does not exclude plant varieties from its scope. This implied that transgenic plants per se were not patentable because of this plant variety exclusion. However, this was overturned by a December 1999 decision of the Enlarged Board of Appeal which in the Notaries case determined that “a claim wherein specific plant varieties are not individually claimed is not excluded from patentability under Article 53(b), EPC even though it may embrace plant varieties” [emphasis added]. This determination has been interpreted to mean that the insertion of a trait is patentable in Europe, provided the patent claim does not specifically refer to plant varieties. Some also tend to argue that the benefit sharing requirements in food and agriculture are met through the development of the new varieties themselves in their breeding programmed and that no further benefit sharing is required. However, the international seed industry association, ASSINSEL, has proposed at the negotiations on the IU that should patent protection be introduced, and result in removal of germless or specific genes from the breeding pool available to breeders, then some form of royalty payment to a fund devoted to safeguarding plant genetic resources for food and agriculture should be introduced.
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CHAPTER - IX
• CONCLUSION and SUGGESTION:
India is an agricultural country, one third population depends on agriculture sector directly or indirectly. Agriculture continues to be the main stray of the Indian economy. Indian agriculture contributes to the national Gross Domestic Product is about 25 per cent. With food being the crowning need of the mankind, much emphasis has been on commercializing agricultural production. Hence, adequate production and even distribution of food has lately become a high priority global concern. With the changing agricultural scenario and global competition, there is a need of exploiting the available resources at maximum level.
In Indian agriculture the factors like high soil productivity, supply of balanced crop nutrients, efficient water management, improved crops, better plant protection, post-production management for value-addition and marketing, are responsible for higher yield as compared to most of the other countries.
Achievements of Indian agriculture like development of HYVs, new hybrids of different crops, research in the area of vaccine production, varietals development through monoclonal variations, developing better quality products and transgenic in crops such as brinjal, tomato, cauliflower and cabbage have strengthened the field. In 21st century agriculture, application of modern biotechnologies like DNA finger printing, tissue culture, terminator gene technology and genetic cloning will hold the key in raising the productivity.
In the new millennium, the challenges in Indian agricultural sector are quite different from those met in the previous decades. The enormous pressure to produce more food from less land with shrinking natural resources is a tough task for the farmers. To keep up the momentum of growth a careful economic evaluation of inputs like seeds, fertilizers, irrigation sources etc are of considerable importance. Considering the irrigation needs in Indian agriculture, emphasis be given to promote the proven cost-reducing micro-irrigation technology of drips irrigation which helps conserve water reduces fertilizer inputs and ensures higher productivity. Farmer awareness programmed coupled with subsidy incentive may prove helpful strategies. The sustainable method of irrigation needs to be popularized. Salinity and water logging problems in the commands of major irrigation systems need to be minimized by recognizing and incorporating corrective measures. Further, proper drainage facilities involving farmer’s groups need to be created. Watershed approach to management of water in rained areas should continue to get the due thrust.
Diffusion of fertilizer consumption in Indian agriculture has been quite widespread. The imbalances in the use of N, P and K have become highly conspicuous. The intensity of fertilizer use has gradually gone up from about 3 kg/ha. In early Sixties to about 88 kg/ha in 1997-98. Therefore, wider distribution of fertilizer needs to be promoted by covering regions with low use of fertilizers such as central and eastern regions of Uttar Pradesh (in the case of wheat and rice) through creation of an extensive network of rural infrastructure (including roads and credit) for establishing an appropriate interface of input markets and output markets in these regions. In Indian agriculture, multiplication, distribution and availability of good quality seed is crucial to accelerated food production. With entry of MNCs in seed production and distribution and consequent effects of patenting under the WTO regime, providing quality seeds to farmer at an affordable cost will be a measure challenge in future. To meet the growing competition companies should adopt modern processing technologies and seed growers have to be trained in cost reducing methods of growing quality seed material.
Although past lessons are not an indication of future success, this convergence of policy solutions and technology opportunities can be replicated for other crops that are vital to India’s food security. This replication strategy may be essential to India’s long-term food security. A reversal of the slowing trend in rice and wheat yield growth will have to capitalize on long-term public investment in research, policy reforms that encourage private investment in agriculture, and a strong IPR regime that leverages both biological and legal forms of protection. Indeed, there are signs that India is moving in the right direction, despite the vibrant discourse and public debates that may suggest otherwise. India has not only emerged as the regional leader in agricultural R&D, but has opened the door for private investment in the field with a fairly conducive policy regime. In response, private firms have entered the market quite readily since the mid-1980s, and have effectively managed the issue of appropriability by concentrating themselves in the market for hybrid seed. More recent policy reforms suggest even greater opportunities, including the introduction of a strong regime for legal IPRs and new technological opportunities afforded by a biotech.
However, further policy solutions are needed. Continued public investment in agricultural R& Dreaminess essential, even in the development of hybrids. New incentives such as an innovation act are needed to encourage the commercialization of public research. And the enforcement of legal IPRs through the adjudication of infringement cases needs to be pursued to create the necessary precedents and incentives for private-sector support in the 2001 PPV&FR Act. In conclusion, India has demonstrated that the private sector can contribute to improving agricultural productivity and food security through the research, development, and delivery of pearl millet and maize hybrids. A more conducive policy environment and an expanding technological frontier suggest that private-sector innovation can contribute even more.
• Protection to Agriculture Innovation
As the world moves towards a knowledge-driven economy, protection of intellectual property rights has become a key motivator for innovation. Historically, IPR was not important to agriculture – as farming was based on the premise of knowledge sharing. However, the last few decades have witnessed remarkable innovations in agriculture – such as genetically-modified plant varieties, and specialized insecticides for pest control – that have warranted a review of the IPR regime of developing nations so as to foster introduction of innovative agricultural technologies into these countries.
Protection of IPR has the potential to dramatically increase agricultural production. However, in countries such as India, IPR needs to be finely balanced so as to protect the interests of farmers and the food security needs of a billion people. Potential concerns include a number of socio-economic and environmental impacts specifically with regard to loss of bio-diversity and bio-safety. In this context, it is critical to review the IPR framework being followed in India, and develop innovative models that address a larger stakeholder paradigm.
• Evolution and Impact of IPR in India
Historically, protection of plant varieties in India through IPR was banned. Until the mid 90s, the Indian Patents Act excluded the patentability of “life forms” including methods of agriculture and horticulture. Further, while allowing “process patents” for substances used as food, it rejected “product patents” for food items. This was intended to foster the availability of essential food items by keeping the prices as low as possible. The absence of patents in agriculture resulted in low private participation in agricultural research and technology development. As a result, the public sector was the major contributor in agricultural development. Signing TRIPS (Trade Related Aspects of Intellectual Property Rights) Agreement in 1994 triggered significant changes in the IPR related legal framework of the nation. Since then, several legislative and institutional adjustments have been made to protect the intellectual property. Some of the major changes include introduction of the following: The Geographical Indications of Goods Act, 1999, to preclude misappropriation of traditional knowledge and patenting of products of Indian origin including ‘appellations of origin', such as, Darjeeling Tea and basmati rice, and promoting them in international markets. The Enactment of Protection of Plant Varieties and Farmers' Rights Act (PPV&FRA), 2001, which has established a unique system by expanding plant variety protection (PVP) to varieties registered by farmers, NGOs and public sector institutions while also protecting the rights of plant breeders. The Amendment of Patents Act, 1970, in 2005 which has extended patents to innovative products from all industries including agrochemicals, thereby, closing the option of reverse engineering or development of ‘me-too' products thus promoting investment in cutting edge R&D. Strengthening of the IPR regime has significantly improved investment in agricultural technology development. The private sector has not only invested heavily in crop genetic improvement and farm technologies, but has also pursued legal IPR protection under various Acts. For instance, in 2008–09, 64 per cent of the 460 PVP applications received by the PPV&FR Authority were from the private sector. This is also reflected in the fact that, the number of patent applications in India has increased more than eight folds between 2005 and 2009. Concerns and challenges Although India has made significant strides towards harmonization of domestic IPR laws with the international system, there are several issues afflicting IPR regime in INDIA. While protection of bio-diversity and farmer rights to use owned seeds remain the greatest concerns, other key challenges for implementation of the regime include:
• Legislative gaps:
In the current regime, there are no provisions for protection of trade secrets which could be used to protect hybrid plant varieties and to harness the extensive gene pool of India. The amended Patents Act, does not confer data protection and exclusivity once application for patent is filed, thereby, increasing the probability of third-party infringement.
• Weak enforceability of IPR:
Unlike the US, Europe or Japan, the awareness and understanding of grounds of infringement and exceptions to infringements is poor and vague in India and no time frame is prescribed for legal recourse. In certain forms such as patents, recognition of encroachment as ‘civil and not criminal offense' and pending legal cases are the major deterrents to sound enforceability.
• Administrative and affordability issues:
Due to deficiencies in the technical and supporting infrastructure, the speed at which an application is granted protection remains extremely slow. Also, the cost of obtaining and enforcing IPR, particularly patents, is high, making them unattractive for small companies, local communities as well as farmers. Socio-economic concerns: Dominance of developed countries at the technology frontiers has stirred socio-economic concerns due to their inherent capabilities to benefit from an organized IPR system. With six multinationals holding 98 per cent of the global market for patented genetically-modified (GM) crops, 70 per cent of global pesticide market and 63 per cent of patents on staple crops, IPR could lead to consolidation of global seed and agrochemical business, concentrating power in few hands. This could result in royalty payments and restrictive contracts which would in turn increase farm input prices. Also, expansion of GM varieties could endorse dominance of few genotypes, leading to loss of biodiversity and increased susceptibility to pests and diseases.
• Misappropriation of traditional knowledge:
Acts of ‘bio-piracy' such as patenting of medicinal properties of turmeric and neem in the US - known for centuries in India - have aggravated concerns of misuse of IPR laws. Solution themes to develop a balanced IPR Regime While policy makers have efficiently balanced socio-economic concerns with international requirement of IPR till date, some of the key areas that require further improvement to facilitate seamless transfer of technology include:
1. Strengthening institutional mechanisms for protection of IPR – Regulatory, legal and administrative through Assigning a high priority towards completion of required legislative provisions to harmonize IPR regime with international laws Simplifying regulatory and administrative procedures for seeking IP protection and defining time frames for the same to reduce lead time Reinforcing parallel laws supporting IPR regulation to bolster their application and enforcement. For instance, the Seeds Act needs to be fortified for effective implementation of PPV&FR Act, 2001
2. Harnessing IPR linked technical opportunities in Agriculture through -
Judicious application of various forms of IPR by linking protection to commercialization Augmenting traditional knowledge digital libraries (TKDL) and documentation of farmers' varieties to give legitimacy and protection to domestic knowledge systems
3. Strengthening public-private R&D interface by Adopting mechanisms such as an ‘innovation bill' to enhance public R&D base wherein public researchers, research organization and universities would be incentivised for commercialization of their innovation Competitive funding schemes to encourage links between public and propriety R&D
4. Enhancing IPR literacy by - Disseminating IPR-related information to all relevant stakeholders – specially the farmers.
The agricultural sector is pulled in opposite directions by the vastness of the market and the protection of State sovereignty, causing conflict between the two models. Regulatory laws do not deal with confrontation thanks to the importance of technology based on the specificity of agricultural products. In fact, in spite of its diversity and the multiplicity of the markets concerned, the agricultural sector has a specificity shared by all of its products. Therefore the organization and even the protection of the jobs of those involved, mainly the farmers and the distributors, will only differ from the ordinary statute of the right to competition as far as the specificity of the products and their use is concerned. The consumer must be the prime concern, not only for efficiency in the market, but also because in order to satisfy the consumer, the rules of the market must be in line with the specific rules of a regulatory system. This is above all due to the fact that agricultural products can be dangerous, and therefore food safety is covered by the regulatory system. The necessity for a regulatory system can arise because some products which are vital for people living in certain geographical and social conditions are inaccessible to them. In this capacity, the regulatory system of the agricultural sector runs parallel to that of water and health. The two situations, theoretically very different, technically have a lot in common, because in food safety, it is essential that neither be affected, but as vital commodities, they must be accessible to everyone. They have different aims but quite similar techniques, particularly because of issues of traceability and public funding. In the creation of a supreme realistic regulatory system we have to take into consideration the fact that time is needed to set up a protection system for products – a problem relatively unknown to a market which lives in the present - as breakdowns in the production chain of agricultural products would cause systemic risks. Therefore, systemic risks require a specific regulatory system, with regulations closely related to those of banking and finance, particularly concerning information and certification obligations. If we go further into the political dimension, whose existence we must now accept, we must consider the fact that agricultural products are also linked to culture, the products themselves and also eating habits, whereas agricultural activity itself is part of land development, an element which the telecommunications regulatory system specifically takes into consideration. We can therefore, through the market and on the market, set up regulatory policies, that are not a set of exceptions, but with specific rules depending on the technical specificity of a product, which is then no longer neutralized by market rules, the main purpose being to satisfy the needs of those who should have access to the market, that is to say the consumer.
A regulatory system consists, therefore, not of opposing the market, by objecting to its influence on the sector, or by placing the sector to the realms of public law and the sovereignty of the state, but of setting up a commercial system providing wider access to certain agricultural products, a long-term production policy and greater transparency concerning the technical nature of products in circulation. Although it is difficult to imagine the creation of a regulatory system, i.e. a structured non-political and independent organization, at least we can see that the institutional principles of regulatory laws, such as the separation of the functions of the controller and the controlled in matters of sanitary risk, are welcome. In the same way, the interactions between the agricultural sector, water regulatory systems, health policies, and the protection of innovative medicines, call for “inter-regulatory” systems, that is to say taking into consideration several aims and interactions in the decision-making in each sector.
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