[Reader-list] The Gene campaign

[Monica Narula]

Below is an article sent by Dr Suman Sahai on bio-diversity and patents.

Members of the list have expressed interest in examining the issue of 
intellectual property rights. It would be good to widen the debate to 
include discussions on all forms of patenting etc. and have further 
contributions.

best
Monica

=========================
PROTECTION OF NEW PLANT VARIETIES
CoFaB: a developing country alternative to UPOV

Suman Sahai
(genecamp at vsnl.com)

After the conclusion of the Uruguay Round, India as well as other 
developing countries have accepted the sui generis option for the 
protection of new plant varieties. India has already passed a Plant 
Variety Protection and Farmers Rights Act. In order to implement the 
law concerned with the protection of new varieties in each other's 
countries, nations need to work through an international platform. 
UPOV (Union for the Protection of New Plant Varieties ) is  such a 
platform through which the industrialised nations regulate the 
implementation of plant breeders rights. UPOV came into being in 1961 
with its headquarters  in Geneva and it is the only platform of its 
kind today. There are 48 members in UPOV , almost all are developed 
countries except for Trinidad & Tobago.  No Asian country is a member 
yet neither should India become one.

Gene Campaign has opposed India joining UPOV  because  UPOV does not 
address our needs. The Campaign has been promoting that India must 
rise to the challenge of
crafting an alternative treaty to UPOV that will meet the needs of 
developing countries. We need to provide a forum that will grant 
apart from Breeders Rights, also Farmers Rights and be geared to work 
towards food and nutritional security .

However, the Agriculture Ministry is of the view that India should 
become a member of UPOV, a forum whose working is totally alien to 
the conditions of agriculture prevailing here. There is no concept of 
Farmers Rights in the UPOV system, rights are granted only to the 
breeder. The UPOV system does not need to protect the rich farming 
community of Europe and America in the way that our seed laws will 
have to protect our farmers. It is clear that we have other goals 
than it is possible for UPOV to fulfill. UPOV conditions are good for 
the countries where it was developed but not for us.

The UPOV system is not suited for us because it embodies the 
philosophy of the industrialised nations where it was developed and 
where the goal is to protect the interests of powerful seed companies 
who are the breeders. In India the position is very different.  We do 
not have big seed companies in essential seed sectors and our major 
seed producers are farmers and farmers cooperatives.  Logically, our 
law will have to concentrate on protecting the interests of the 
farmer in his role as producer as well as consumer of seed.

Once we are in the UPOV system, we shall be forced to go in the 
direction that UPOV goes.  It is a system headed towards seed 
patents.  Starting with its first amendment in 1978 when limited 
restrictions were placed on protected seed, the 1991 amendment which 
is now ratified ,brought in very strong protection for the plant 
breeder.  In this version, breeders are not exempt from royalty 
payments for breeding work and the exemption for farmers to save seed 
has become provisional. UPOV now also permits dual protection of 
varieties, that means in the UPOV system, the same variety can be 
protected by Plant Breeders Right (PBR) and patents.  It would seem 
obvious that UPOV is ultimately headed towards patent protection for 
plant varieties.  It would be wise for India to stay out of a system 
which has plant patents as its goal since that is neither our goal 
nor our interest.

UPOV laws are formulated by countries which are industrial, not 
agricultural economies.  In these countries the farming community is 
by and large rich and constitutes from 1 to 5% of the population ; 
their agriculture profile is completely different to ours.  These 
countries do not have the large numbers of small and marginal farmers 
like we do yet subsidy to agriculture is of a very high order. 
Because they produce a massive food surplus, farmers in 
industrialised countries get paid for leaving their fields fallow.

In Europe agriculture is a purely commercial activity.  For the 
majority of Indian farmers however, it is a livelihood.  These 
farmers are the very people who have nurtured and conserved genetic 
resources.  The same genetic resources that breeders want to corner 
under Breeders Rights.  We must protect the rights of our farmers and 
these rights must be stated unambiguously in our sui generis 
legislation.

Almost all agricultural research and plant breeding in India is 
financed with the taxpayers money.  It is conducted in public 
institutions like agricultural universities and institutions of the 
Indian Council of Agricultural Research (ICAR).  This research 
belongs to the public. The laws of UPOV on the other hand are 
formulated by societies where seed research is conducted more in the 
private domain than in public institutions; where private capital 
finances plant breeding. Because they invest in expensive breeding 
methods and need to secure returns on their investments, seed 
companies in Europe and North America seek market control through 
strong IPRs.  These conditions do not apply in India.

Another feature that makes the UPOV system unsuitable for us is its 
sheer cost. At the seminar organised jointly by the ICAR and UPOV in 
Delhi last year,  the figures that were presented for obtaining an 
UPOV authorised Breeders Right certificate could be several 
thousands, even lakhs. Such rates will effectively preclude the 
participation of all but the largest seed companies.  There certainly 
will be no space in such a system for small companies, farmers 
co-operatives or farmer/breeders.

In developing countries, farmers play a significant role as breeders 
of new varieties.  They often release very successful varieties by 
crossing and selection from their fields.  These varieties are 
released for use as such.  In addition, in almost all cases, these 
varieties are taken up by agriculture universities as breeding 
material for producing other varieties.  Such farmer/breeders would 
not be able to participate in an expensive system like UPOV. Their 
material along with their labour and innovation would be 
misappropriated by those with the money to translate such valuable 
germplasm into money-spinning varieties registered in UPOV.  Poor 
farmers unable to pay the costs of getting an UPOV certificate, would 
tend to sell their varieties for small sums to larger seed companies. 
This will be the ultimate irony, creating an institution that will 
snatch away from the farmer his material and his opportunities.

Gene Campaign and the Centre for Environment and Development are 
presenting here an alternative treaty to UPOV to provide a forum for 
developing countries to implement their Farmers and Breeders Rights. 
This treaty is called the Convention of Farmers and Breeders, CoFaB 
for short. CoFaB has an agenda that is 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.

This treaty between  developing countries seeks to fulfil the following goals :
* Provide reliable, good quality seeds to the small and large farmer
* 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

The salient features of COFAB are as follows

1. Farmers rights : Each contracting state will recognise 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.

2. Breeders rights : Each member state will recognise 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 authorisation 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.

Authorisation by the breeder shall not be required either for the 
utilisation 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 authorisation 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, CoFaB 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 CoFaB 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.

-- 
Monica Narula
Sarai:The New Media Initiative
29 Rajpur Road, Delhi 110 054
www.sarai.net