GS 3-Effects of liberalization on the economy; Issues relating to intellectual property rights

Keywords: PPV&FRA, Breeder rights, Section 39, IPR, PepsiCo, UPOV Convention

Why in News ?

The Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA) has revoked a plant variety protection (PVP) certificate granted to PepsiCo India Holding on a potato.

History of PPVFRA

1. The PPVFRA was enacted in 2001 after long debates, on how intellectual property rights should be introduced in Indian agriculture after the country joined WTO and agreed to implement the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).
2. The Indian dilemma was to either enact a law that protected the interests of farming communities or to accept the framework of plant breeders’ rights given by the International Union for Protection of New Plant Varieties (UPOV Convention).
3. The UPOV was rejected because UPOV denies the farmers the freedom to reuse farm-saved seeds and to exchange them with their neighbours.

About PPV & FR Act, 2001

1. Act establishes an effective system for the protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants.
2. Act aims to provide recognition and protect the rights of farmers in conserving, improving and making available plant genetic resources for the development of new plant varieties.
3. Act protects plant breeders’ rights; stimulates investment for research and development both in public & private sector for the development new of plant varieties.
4. Act facilitates the growth of seed industry and ensures availability of high quality seeds and planting material to the farmers.

Rights under the Act

1. Breeders’ Rights : Breeders will have exclusive rights to produce, sell, market, distribute, import or export the protected variety. Breeder can appoint agent/ licensee and may exercise for civil remedy in case of infringement of rights.
2. Researchers’ Rights : Researcher can use any of the registered variety under the Act for conducting experiment or research. This includes the use of a variety as an initial source of variety for the purpose of developing another variety but repeated use needs prior permission of the registered breeder.
3. Farmers' Rights

• A farmer who has developed a new variety is entitled for registration and protection in like manner as a breeder of a variety.
• Act provides that farmer shall not be entitled to sell branded seed of a variety protected under the PPV&FR Act, 2001.
• Farmers are eligible for recognition and rewards for the conservation of Plant Genetic Resources of land races and wild relatives of economic plants.
• Act has provision for compensation to the farmers for non-performance of a variety registered Section 39 (2) of the Act, 2001.
• Farmer shall not be liable to pay any fee in any proceeding before the Authority or Registrar or the Tribunal or the High Court under the Act

Background of PepsiCo issue

1. The company applied for the registration of two hybrid potato varieties FL 1867 and FL 2027 in February 2011.
2. These varieties were registered under the PPVFRA in February 2016 for a period of 15 years. PepsiCo marketed the latter variety under the trademark FC-5 and was claiming that the Gujarat farmers were illegally using this variety.
3. But, planting a registered variety by the farmers is per se not an offence since the PPVFRA allows the farmers to re-use such varieties and to also share them with their neighbours, provided some conditions are met.
4. The farmers cannot sell “branded” seeds, which, according to PPVFRA, means “any seed put in a package or any other container and labelled in a manner indicating that such seed is of a variety protected” under the Act.
5. Company claimed before the court that FC-5 was licensed to farmers to bring potatoes of the said variety on the buyback system. The FC-5 variety could have been made available and distributed anywhere, and without the law being violated.
6. Another issue was FC-5 was registered as an “Extant Variety”, which is also a “Variety of Common Knowledge”. It implies that the said variety of potato was already available in the country before it was registered and that there was “common knowledge” about this variety in the country. Thus, difficult to stop farmers from growing the patented products.
7. PepsiCo withdrew the cases after the discussions it held with the State government in May 2019.

UPDATE: New order by Protection of Plant Varieties and Farmers’ Rights Authority on the PEPSICO case :

• Authority felt that the grant of the certificate was based on “incorrect information” furnished by the applicant
• It also concurred with the argument that the certificate was granted to a person “not eligible for protection”.
• Authority upholds farmers’ seed freedom as contained in Section 39 of the PPV&FR Act.

Criticism of PPVFR Act, 2001

• Discourages research & innovation: PPVFR Act allows farmers to use patented varieties & hence private companies are not keen to bring new technology.
• Many experts criticized government for poor invests in agriculture sector, and now not respecting private & foreign players’ IPR ( hamper EoDB in Agriculture sector) .

Conclusion

• The need of hour is the proper review of legislation which is nearly two decade old. Add some new provisions which can ensure not only protection to farmers' Rights, but also promote EoDB in Agriculture sector.

Prelims Question

Q. Consider the following statement

1. PPVFR Act allows farmer to use patented products without breeder consent.
2. Section 39 of PPVFR Act is related to compensation to farmers for non-performance of patented products.

Choose the correct answer:

A. 1 only

B. 2 only

C. 1, 2 only

D. None

Answer: C

Mains Question

Q. Enumerate the provisions of PPV & FR Act, 2001. Discuss, how it can be used to develop Agriculture as an Enterprise, as recommended by Ashok Dalwai committee. (15 marks)

Sources: The Hindu BL