India is home to numerous varieties of flora and fauna. This include 50000 varieties of rice, 1000 varieties of mangoes and 27 breed of cattle among others. The need to protect this biodiversity comes from the fact that while the developing countries are rich in biodiversity and genetic resources, the developed countries are more equipped with technologies. Hence, there is always a possibility that these countries may exploit our biological resources. For example, the USA had given patent turmeric to the University of Mississippi Medical Centre for the discovery of turmeric’s medicinal value in curing wounds. This is despite the fact Indians were well aware of the medicinal value of turmeric since ages. While USA has revoked the patent after strong opposition from India, this incident had started the debate among India lawmakers for a strong legislation and the role of IPR in protection of biodiversity.
As far as the international law is concerned, the Article 27(3)(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (the “TRIPS Agreement”) allows governments to give patent on micro-organisms, non-biological and microbiological processes. Moreover, the International Union for the Protection of New Varieties of Plants (UPOV) was established in 1961 to grant intellectual property rights to people who breed new varieties of plants. This is also called the Breeder Right. Such right allows the breeder to use the variety for commercial purposes. The breeder includes an individual, farmer, researcher or public or private company. In order to get the right, the plant variety has to be distinctive, uniform and stable. However, protection is not granted in case of amateur gardening or subsistence farming without any commercial interest. In consonance with the UPOV, the Indian Parliament had enacted the Protection of Plant Varieties And Farmers Right Act, 2001 which I will discuss later.
The Biodiversity Act, 2002
India has enacted the Biodiversity Act, 2002. The Act defines ‘biological diversity’ as variability among living organisms and includes diversity within and between species and of eco-systems. Further, ‘biological resources’ has been defined as plants, animals and micro-organisms including their genetic materials and by-products. It is important to note that the Convention on Biological Diversity defines ‘genetic resources’ as all living organisms which have genetic materials potentially useful to humans. Article 15 of the Convention on Biological recognizes the sovereign rights of the State over its genetic resources.
The Biodiversity Act puts certain restrictions on the use of biological resources for commercial purposes. It has a three-tier body which includes National Biodiversity Authority, State Biodiversity Boards and Biodiversity Management Committees at the local level. While the State Biodiversity Boards give permission to any Indian willing to commercially utilize the resources, the National Biodiversity Authority gives permission to any foreigner or Non-Resident Indian for the same. Moreover, no person can apply for patent or any other intellectual property right without taking the permission of the National Biodiversity Authority. There are also restrictions in terms of sharing of research outcomes to non-citizens or foreign companies. Such cannot be shared without the permission of the National Biodiversity Authority.
Plant Varieties And Farmers Right Act, 2001
Apart from the Biodiversity Act, the Indian Parliament had also passed the Protection of Plant Varieties And Farmers Right Act, 2001. The Act confers rights to breeders, farmers and researchers. Breeders rights include production and selling of seeds including its import and export. Moreover, a breeder can authorize any other person with the same rights. Researcher’s right include conducting experiment with the variety of seed which has been registered under the Act. It can also create new varieties from an already registered varieties. Moreover, communities can also claim right under this Act for the discovery of a new variety of plant. As far as the registration process is concerned, the seed variety has to be novel, distinct and uniform. The Act also provides for Compulsory Licensing in line with Section 84 of the Patent Act. In order to get such license, the applicant has to show that 3 years have passed since the registration has been granted, there is a public interest in the seed or any material associated with the seed and the seed or the associated material is not available to the public at a reasonable price.
Farmers can register a plant variety themselves and can use, sow or sell any seed or farm produce even if the seed is protected under the Act. The provision is retrospective in nature because protection is granted to such farm product even before the Act came into force. This provision is very important if one considers the PepsiCo vs Bipin Patel & Others. In that case, the Pepsi Company had sued the farmers alleging that the latter was cultivating a variety of potato (FL-2027) even though the company has patent over the variety till 2031. Farmers have also the right to claim compensation from the breeders if the variety sold to them does not give the desire result as claimed by the breeder. Later on the Company withdrew the case and came to a compromise with the farmers.
One of the major differences between the Act and UPOV was that the Act has excluded private companies from the definition of ‘farmers’. This has been deliberately done to safeguard the interests of the farmers from the big corporates. In fact the Seed Bill of 2019 faced backlash because it aimed to increase the ambit of ‘farmers’ to include private companies as well. Moreover, India is also not party to the UPOV. Hence, unlike the UPOV, private companies cannot claim intellectual property rights over plant varieties.
The need to protect our biodiversity could be done only through laws. Such laws should not only provide intellectual property right over such plant varieties but should provide other incentives as well. The Biodiversity Act and the Plant Varieties And Farmers Rights Act ensure that India has a sui generis regime, apart from the other common intellectual property laws. However, it needs also to be balanced with the need of the society. Hence, the provision for compulsory licensing has been provided. Overall, the Acts do a decent job, as far as protecting the plant varieties are concerned.