The Wire - 13 May 2019
PepsiCo controversy: Globally, India has always refused to give in on IPR on plant varieties
By Shalini Bhutani
The struggle for farmers’ rights over their seeds and planting materials is not playing out only in India – it’s a global phenomena.
While the debate around PepsiCo’s controversial cases against a few Gujarat-based farmers has focused on national law – the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001 – it is equally important to look at the international law that has a bearing on the issue.
India is a member of multilateral trade rules, the World Trade Organisation (WTO), since 1995. One of the WTO agreements, namely the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), introduced the idea of intellectual property rights (IPR) on life forms as a global minimum standard.
It was due to the push of the seed, pharma and biotech corporations that the TRIPS Agreement was put in the WTO. The move had no social backing in India, particularly from farmers. In fact, it was on the back of that, that our then ambassadors fought hard against US pressure for IPR. While the TRIPS Agreement still came to be, we chose to opt out of patents on plants, using Article 27(3)(b) of TRIPS that allows WTO members to exclude plants from patentability.
Section 3(j) of the Indian Patents Act makes it clear that plants, including seeds, varieties and species, and essentially biological processes for production or propagation of plants are not inventions.
India therefore does not subscribe to patents on plants and provides for IPR through plant variety protection (PVP) instead. That is the point of genesis of the Protection of Plant Varieties and Farmers’ Rights Act, 2001, which is an IPR law.
The International Convention for the Protection of New Varieties of Plants (UPOV) is an intergovernmental organisation set up to essentially protect the interest of corporate plant breeders. Since the so-called ‘Green Revolution’ in India, there has been talk of breeder rights in the country.
But India has stood steadfast in not joining UPOV. This is because the plant breeder rights it prescribes severely limit farmers’ freedoms. Yet that is precisely what the seed industry wants.
In free trade agreements as well, such as the proposed mega regional – Regional Comprehensive Economic Partnership (RCEP), there is pressure on India to be UPOV-compliant. The draft chapter on intellectual property makes it mandatory for all RCEP member countries to be members of UPOV.
For India this would mean doing away with the chapter on farmers’ rights in the PPV&FR Act.
While India is not a member of UPOV or any of its conventions – and its farmers do not want to be either – there appear to moves within the PPV&FR Authority to slowly move to UPOV standards.
At its meeting in November 2018, the idea of increasing the period of PVP protection to bring it at par with UPOV was discussed.
The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) is the international law that recognises farmers’ contributions in PGR for food and farming. The treaty entered into force in 2004. It hasspecific provisions on Farmers’ Rights in Article 9.
Article 9.3 of ITPGRFA states:
Nothing in this Article shall be interpreted to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material, subject to national law and as appropriate. In its list of 64 crops for the multilateral system to be shared through facilitated access across the world, potato is one of them.
India is a member of the seed treaty and has provided for farmers’ rights in its domestic legislation. The Registrar General of the PPV&FR Authority is a co-chair of the Technical Expert Group set up under the treaty to give guidance to member countries on how to effectively implement farmers’ rights.
The Registrar General is also the registrar in charge of farmer rights in the country.
Pushed by its Human Rights Council, in December 2018, the UN General Assembly adopted a declaration on the rights of peasants and other people working in rural areas.
This was the result of a 17-year-long process, initiated by the international peasant movement La Via Campesina, supported by numerous social movements and allied organisations. Article 19 of the declaration is dedicated to farmers’ seed rights. This includes the right to save, use, exchange and sell their farm-saved seed or propagating material.
Under the declaration, states have to ensure that seed policies, plant variety protection and other intellectual property laws, respect and take into account the rights, needs and realities of smallholder farmers.
The Indian government voted for this declaration.
Treaty for TNCs
What the PepsiCo controversy shows us is that farmer’s rights cannot be guaranteed if corporate behavior cannot be contained.
In 2014, the United Nations Human Rights Council adopted a resolution “to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises.”
The Indian delegation, which includes the Ministry for Corporate Affairs, has studied the zero draft in detail and is of the opinion that thorough and detailed deliberations on various elements of the draft are required.
Nonetheless, it has expressed commitment to the negotiations.
What India has been able to do is to maintain its image at international fora that it will not give in when it comes to IPR on plant varieties. Civil society stakeholders have also repeatedly raised their voice against the absurdities of the IPR system in the seed sector.
But has this helped Indian farmers realise their rights? Or are we going to continue to see farmers square up against multinational corporations in courtroom battles? The aftermath of the PepsiCo incident and how we deal with future situations will tell us.