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