The law to protect farmers’ rights in the country – the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001, needs constant citizen vigilance to keep it ‘pro-farmer’ in its implementation. This is because compliance with this intellectual property (IP) law can itself become a burden on the small and marginal peasants, as is becoming increasingly evident.
Given that this law is India’s answer to the World Trade Organisation’s demand for IP in the seed sector, there was always an expectation that it would be more sensitive in its handling of farmers. Developing countries were given options to implement WTO TRIPS: either provide US-styled patents on plants or the European-styled plant variety protection (PVP) or develop their own sui generis law.
India’s PPV&FR Act drew on the European UPOV model, but to that it retro-fitted farmers’ rights provisions as a unique desi element. The UPOV Convention claims to protect farmers’ rights by granting them limited subsistence-level use exemptions from the exclusive rights of plant breeders over their crop varieties, while India’s law recognises farmers as breeders too.
Many seed saver groups in the country are convinced that this European-styled IP for professional breeders is neither useful nor desirable in their context, since among other things, it attacks the very idea of sharing of seeds, standardises seed quality as per the industry viewpoint and creates unnecessary inter-farmer competition in an already hostile market.
Nevertheless, in the hope of state support for conservation, also to pre-empt ‘biopiracy’ and egged on by others, some farmers did willy-nilly register their varieties for IP protection with the PPV&FR Authority.
The Authority is headquartered in Delhi and became functional in 2005. It began to receive PVP applications in 2007. After the legally prescribed time period for testing of the varieties seeking IP protection, PVP registration certificates began to be granted from 2009 onwards. Such registration of a variety under the Act grants an exclusive right to the plant breeder to produce, sell, market, distribute, import or export the said variety, which the breeder has developed.
Recently, however, farmers have begun to get notices from the PPV&FR Authority on the issue of pending annual fees. Dadaji Ramaji Khobragade, a well-known farmer breeder from Maharashtra, is one such case. He has received a ‘final notice’ from the Authority, asking him to pay an outstanding amount of Rs. 6,000 at the rate of Rs. 2,000 per annum for three years. This is for his paddy variety – Dadaji HMT, for which he was granted a plant variety certificate in 2012.
If the farmer does not pay up within the stipulated time, as per the provision of the above-mentioned law, he is at risk of losing the registration status for his registered crop variety. The Authority will forfeit the PVP registration certificate for his variety.
Section 35 of the Act requires the payment of annual fees for each registered variety for the retention of the PVP registration. Under this legal section, the Department of Agriculture & Cooperation (DAC) under the Ministry of Agriculture issued a notification dated 26 August 2009, to stipulate the annual fees.
Depending on the category of the plant variety registered, the annual fees range from Rs. 2,000 per annum to higher amounts including the additional percentages of sales value of seeds and royalties, if any, received for the registered variety in the previous year.
Section 44 of the PPV&FR Act clearly states that a farmer or group of farmers or village community shall not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder.But this legal provision does not cover annual fees. The payment of annual fee itself cannot be said to be a ‘proceeding’ before the Authority/Registrar, etc.
Those in the farming community have long been under the impression that if they choose to pursue anything under the Act, there will be little or no financial obligations on them. But the experience of small farmers in the informal seed sector has shown otherwise. There are costs to them, too, for IP registration and as it appears now, for continuing IP protection. Many claim they were not informed about the requirement to pay annual fees.
For the registration process some have had to hire an agricultural scientist to help them complete the scientific documentation; at other times they have had to spend on more mundane requirements of getting the necessary affidavits and other paperwork. The submission of forms from the villages in which they are based often entails travel or despatch costs.
In a situation when a notice comes from the Authority, there can be other practical issues involved. The letter may reach late, either due to a wrong address or delayed delivery in the village. The communication being in English and in legalese, the content is difficult for the farmer to understand. The absence of legal literacy on such issues and the lack of legal guidance is another reality that bears upon the situation. Sometimes farmers can either choose to or be ill informed by others to ignore such letters. This can have other legal consequences.
It emerges that the issue of waiver of annual fees for farmers is a long pending matter before the PPV&FR Authority. This is reflected in the records of its 17th Meeting held on 19 October 2012 at the Indian Institute of Sugarcane Research in Lucknow.
The minutes of the meeting mention that to be able to charge fees, categorisation of farmers would be needed. This would be both a ‘big task’ and not a ‘practical solution’, and therefore members felt it should not be undertaken.
The Authority had then agreed that farmers, irrespective of any category, should be exempted from payment of annual and renewal fees. In fact, in the spirit of Section 44 mentioned above, it was of the view that the exemption from payment of fees to the farmers would be a step forward to encourage the farmers to come forward and register their varieties.
Nonetheless, it was decided that the matter would be taken up again with the DAC.
Thereafter, the issue re-appeared as an agenda item at the 18th meeting of the Authority held on 22 May 2013 at the ICAR’s NASC Complex in Delhi under the title Exemption of Farmers from Paying Annual and Renewal Fee. But the item was deferred for consideration at the next meeting. Curiously, the matter did not re-surface at all in the agenda for the 19th Meeting of the Authority, held on 18 October 2013 at the NASC complex again.
According to latest figures released by the Authority on 31 March 2015, the maximum number of varieties registered for IP protection is that of extant varieties, followed by those of farmers’. Out of the total of 1773 PVP registrations granted in the period 2007-2015, 539 are registered as farmers’ varieties.
However, this does not mean that those farmers are automatically beginning to derive ‘benefits’ from registering their crop varieties. Neither the Authority, nor the Ministry/Departments of Agriculture have thus far provided for the necessary conditions to help bring registered farmers’ varieties to the stage of commercialisation.
Sceptics fear that the Act and the manner of its implementation will never be able to level the playing field for small and marginal farmers, especially where an already strong seed industry, including MNCs, dominates the seed market. This might be true, given that the PVP system was never designed for small farmers.
In fact, some suspect that singling out Dadaji’s rice variety for forfeiture due to non-payment of annual fees is because there is a similar public sector variety – PKV HMT (released by the Agricultural University, Akola) competing for commercialisation.
Till all these issues are addressed, it seems clear that it will be the small farmer who continues to pay for an IP system that he didn’t even ask for in the first place. Even if the fees are waived for farmers, the IP law will continue to privatise seed and planting material. This is against the grain of how farmers practise farming.