Protection of plant variety is a type of Intellectually Property Right, which is also called 'Plant Breeder's Right'. Such rights are granted to a farmer or any individual or organization which breeds a new plant variety for the exploitation and commercialization of the protected variety. This benefit can be reaped by the eligible persons only if any third party has been granted approval and authorization by the rightful owner, to use the protected variety. In the case of Patents, Trademarks, Copyright etc., an examination and prior investigation is required, the same is required to be undertaken and then the relevant authority will grant such protection to establish a breeder's right.
In India, plant varieties, rights of farmers and plant breeders are protected by way of a sui generis system through the Plant Variety Protection and Farmers Rights (PPVFR) Act, 2001 ('Act'). The framework provides for protecting the interests of open division reproducing foundations and the farmers. The main aim and objective of this Act is
To recognize and protect the rights of commercial plant breeders as well as farmers regarding their contribution made in improving, conserving and making available plant genetic resources
To encourage the development of new plant varieties
To establish a system for the effective protection of plant varieties the rights of plant breeders and farmers
To increase the speed of agricultural development in the country, stimulate investment for research and development of new plant varieties
To facilitate the growth of the seed industry which ensures availability of high standard seeds and planting materials
The question that arises is why is there a need to grant protection to plant varieties as part of the IP regime?
The TRIPS Agreement mandates all WTO member nations to implement an "effective system" for the protection of plant varieties. Article 27(3)(b) of the agreement states that Member countries may exclude “plants and animals other than micro-organisms, 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.”
India being a signatory to the TRIPS agreement was faced with two options, either grant protection to plant varieties by way of a sui generis system or through Patents. India opted for the former and this framework coordinates the interests of farmers, reproducers, plant breeders and offers adaptability concerning ensured genera/species, level, and time of insurance when contrasted with other comparable enactments existing or being planned in various countries. The PPVFR Act aligns with TRIPS, furthermore, it also provides rights to farmers to reuse ranch seeds and even trade with neighbours, which was denied under the International Union for Protection of New Plant Varieties ("UPOV Convention").
The PPVFR has a separate segment on the rights of farmers, divided into three parts:
Farmers can enlist their assortments and are regarded as plant raisers
Those farmers who are entrusted with the task of protecting hereditary land assets and wild family members of financial plants are recognized and remunerated accordingly,
Ensuring the customary acts of farmers of sparing seeds from one lot and using the same seeds for planting purposes or offering them to their neighbours, are protected.
The next question that naturally arises is why is there a need for new varieties of plants?
Ø Food security can be achieved by suitable sustainable means. With the availability of a variety of healthy and tasty food at affordable prices, the sole requirement is new varieties of plants that are adapted to the environment and provide a viable income for farmers.
Ø For economic development innovation in agriculture and horticulture is important and the same is possible through the production of high varieties of fruit and vegetables. This provides increased income and employment opportunities for farmers. New plant varieties are also helpful in the development of urban agriculture.
Ø New plant varieties help increase productivity and product quality as they are produced making efficient use of nutrients, adapted to resist plant pests, diseases, salt and drought tolerance and better adapted to climatic stress. This naturally reduces the burden on the natural environment.
The other question is why is it necessary to grant protection to plant variety?
I. The first reason could be that successful breeding requires skill, knowledge, investment, specialized equipment etc. Such knowledge, tie and effort ought to be promoted in a protected manner.
II. Once a new plant variety is made easily available in the market, the breeder is deprived of the opportunity to capitalize and earn benefits from his/her investment if there is no protection. Such protection acts as an incentive for the development of new plant varieties by farmers, growers, society at large.
III. New plant varieties take a long time to be made. It involves a lot of research and development and the end product will be worthwhile only if there is a chance for the breeder to obtain a right over the new variety and thus be rewarded for his investment.
Essential criteria for protecting plant variety-
A plant variety should have at least one distinct feature which makes it distinguishable from the existing or known variety in the county.
The essential characteristics of a variety must have sufficient uniformity throughout
There must be stability in the characteristics even after continuous propagation.
Most importantly the plant variety must be a novel one and must not be made available in India at the date of applying for registration.
Under the PPVFR Act, there are a few types of plant varieties that are eligible for registration,
(i) Farmer's variety- which refers to those which have been traditionally cultivated by farmers and evolved or a variety which is a wild relative or a race of which the farmers know and passed it on.
(ii) New variety- is unavailable in India in the public domain before the completion of 1 year before the date of filing, or outside India in case of trees or vines before 6 years, or earlier than years in other cases.
(iii) Extant variety- is either notified under the Seeds Act, 1966 or is a variety commonly known to farmers or any variety which is publicly known.
(iv) Essentially Derived Variety (“EDV”) – conforms with an initial variety that is the end product from a genotype or combination of the genotype of the initial variety.
The following types of plant varieties cannot be registered under the PPVFR Act, 2001:
Commercial exploitation of such variety must be avoided, which will otherwise cause serious damage and harm to the environment, public order, morality or life in general
Any variety utilizing such technology injurious to life and health of all living things. The expression 'any technology' includes genetic use restriction technology and terminator technology.
Any such variety which has not been listed by the Central Government in their notification.
Who can apply for plant variety protection?
The following people can apply for registration of plant variety-
(i) A person claiming to be a breeder,
(ii) Successor of the breeder of the variety
(iii) Assignee or the breeder of the variety who has the right to file such application,
(iv) Farmer or a group of farmers or community of farmers who claim to be breeders of the variety,
(v) Person authorized by farmers,
(vi) Any University or Publicly funded agricultural institution claiming to be breeders of the variety.
There are certain exemptions as provided under the Act
Ø Farmers are allowed to produce, sow, use, save, exchange, sell, re-sow, or share their farm produce and/or the seed variety
Ø Researchers are also under the exceptions and are allowed to use the registered variety for research purposes or use it as an initial variety source for creating other varieties.
Ø Breeders also have the right to produce, sell, distribute, import or export the protected variety. Agents or licensees can also be appointed to exercise their rights in case of infringement.
Plant variety must receive protection to ensure farmers, plant breeders etc., have a stable and sustainable source of income. This results in greater availability of improved varieties, diversification, enhanced domestic breeding and better access to foreign new varieties as well. However, it is pertinent to ensure the registration process, the standards laid down, the fees etc., are simple and easy to follow. With technology taking over every sphere of life, the agricultural sector will easily fall prey to the banes of technological advancements, if they are not rightly incentivized and their knowledge, skills are not given protection. A strong, steady and stable food supply is maintainable only due to plant-related innovations. New plant varieties have given us the joy of diverse, safe, nutritious, and abundant food. Any decrease in the capacity to acquire IP or any development of lawful vulnerability regarding its sustainability will reduce the accessibility of those advancements that we depend upon for the food on our tables. At the end of the day, it is to nature, the environment as a whole to whom we owe our biggest debt. It is, therefore, our duty to protect, preserve and promote their sustenance and conservation by backing the farmers, breeders etc., with adequate legal protection.
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