What Rights Are Guranteed Under Protection of Plants Varities and Farmers Act

What rights are guranteed under protection of plants varities and farmers act. And How they are protected under UPOV convention 1961? On what grounds compoulsary licencing can be made ?

Submitted by: Pranav Khanna Roll No. 47

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Introduction :

The Indian Parliament Parliament has finally passed the Plant Variety Protection Protection and Farmers¶ Rights Bill. India has now, for the very first time, put in place a law to grant Plant Breeders¶ Rights on new varieties of seeds. The law also grants Farmers¶ Rights. These have been included in the legislation as a result of the determined and sustained campaign by NGOs, spearheaded by the Gene Campaign. Gene Campaign¶s position right from the start was that if the  status quo had to  be changed and India India had to grant grant Plant Breeders¶ Rights, our legislation would have to grant a strong Farmers¶ Rights at the same time. We maintained that µplant back rights¶, i.e. the right to save seed from the harvest to sow the next crop, were no rights, only exemptions. Breeders Bree ders under UPOV granted such exemptions, referred to as Farmers¶ Privilege. We insisted that Indian law had to grant rights, not provide exemptions, to its farmers. Our key demand demand was for the farmer to retain retain the right to sell  to sell seed seed to other  farmers, even if the variety was protected by a Breeders¶ Right. This right to sell seed is crucial to maintaining the livelihood livelihood basis of the farming community community and the nation¶s self-reliance in agriculture. The clause on the right to sell seed was the major bone of contention to the very end of the legislative process. The pivotal importance of the farmer having the right to sell seed has to be seen in the context of seed production in India, where the farming community is the largest seed producer, providing about 87 percent of the country¶s annual requirement. Denying the farmer the right to sell seed would displace the farming community as the country¶s major seed provider. Their only

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Farmers¶ Rights: In section 39 (iv) of the chapter on Farmers¶ Rights, the right to sell seed ± even protected seed ± has finally been provided The farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act. However, the farmer is not entitled to sell µ br anded seed anded  seed of a variety protected under this Act¶

Other

Kinds of Farmers¶ Rights:

The Act acknowledges the role of rural communities as contributors of landraces and farmer varieties in the breeding of new plant varieties. Breeders wanting to use farmers¶ varieties for creating Essentially Derived Varieties ( EDVs) can not do so without the express permission of the farmers. Anyone can register a community¶s claim and have it duly recorded at a notified center. If  the claim is found to be genuine, a share of profits made from the new variety has to go into a National Gene Fund.

1)  Exemption

f r  o rom   m fees :

Further protecting farmers from the new set of provisions being put in  place, the new Act stipulates that farmers wishing to examine documents and papers or receive copies of rules of  rules and decisions made by the various authorities will be exempt from paying any fees. 2)  Disclosur e : Explicit Explicit and detailed disclosure in the passport data about the parentage parentage of the new variety is required. If concealment is detected in the passport passport data, the Breeders Breeders certificate stands to be cancelled

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

4)  P r  o rotection   tection

against innocent inf r  i  ngement : ringement 

Rightly assuming that farmers may may unknowingly infringe Breeders¶ Rights since they will not be used to the new situation, situatio n, the law provides for protection from prosecution for innocent infringement.

ing : 5)  Benefit-sha r ing  The provision for payment for use of farmer varieties is welcome but modalities modalities of implem i mplementing enting benefit-sharing benefit -sharing must be made simpler and less bureaucratic. The revenues earned should only be available for use  by farming communities, in the way that they decide. o 6)  P r  rotection   tection against  bad seed : The clause protecting the farmer from spurious seed leaves too much to the discretion of the Authority. There should be specific guidelines, such as that compensation should amount to at least twice the projected harvest value of the crop. In addition, a jail term should be provided for repeated offence . Rights of Breeders and Researchers: Breeders¶ Rights are fully protected protected by the legislation. On registration, the  breeder has complete complete rights of commercialisation for the registered variety. These include the right to produce, sell, market, distribute, distribute, import or export the registered variety.  P enalties enalties

fo r  inf r  i  nging  Br eede eede r  s¶ Rights: ringing 

Violation of a Breeders¶ Right can apply to the variety itself, as well as to its  packaging. Penalties can range from Rs. 50,000 to ten lakh as well as a jail term ranging from three months to two years, depending on the severity of the damage caused. For repeated offence, fines can go upto Rs. 20 lakh and the jail term to three years. The new law has provisions for Researchers¶ Researchers¶ Rights which allow scientists and breeders free access to registered varieties for research. The registered variety can also be used for the purpose of creating new varieties. This flexibility is curtailed only when the registered registered variety needs to be used repeatedly as a parental line for commercial production of another variety.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

revised in 1972, 1978 and 1991. The objective of the Convention is the  protection of new varieties of plants by an intellectual property right. By codifying codifying intellectual propert property y for plant breeders, UPOV aims to encourag encourag e the development of new varieties of plants for the benefit of society. For plant breeders' rights to be granted, the new variety must meet four criteria under the rules established by UPOV: 1. The new plant must be novel, which means that it must not have been  previously marketed in the country where rights are applied for. 2. The new plant must be distinct from other available varieties. 3. The plants must display homogeneity. 4. The trait or traits unique to the new variety must be stable so that the  plant remains true to type after repeated cycles of propagation.

System of protection: The Convention defines both how the organization must be governed and run, and the basic concepts of plant variety protection that must be included in the domestic laws of the members of the Union. These concepts include : y

y

y

y

y

y

The criteria criteria for new varieties to be protected: novelty, distinctness, uniformity, and stability. The process for application for a grant . Intellectual Intellectual property rights conferred to an approved approved breeder . Exceptions to the rights conferred to the breeder . Required duration of breeder's right . Events in which a breeder's rights must be declared null and void .

In order to be granted breeder's rights, the variety in question must be shown to  be new. This means that the plant variety cannot cannot have previously previously be en available for more than one year in the applicant¶s country, or for more than four years in any other country or territory. The variety must also be distinct, that is, easily distinguishable through certain characteristics from any other known variety (protected or otherwise). The other two criteria, uniformity and stability, mean

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

A breeder can apply for rights for a new variety in any union member country, and can file in as many countries as desired without without waiting for a r esult from  previous applications. Protection only applies in the country in which it was granted, so there are no reciprocal protections unless otherwise agreed by the countries in question. There is a right of priority, and the application date of the first application filed in any country is the date used in determining priority. The rights conferred to the breeder are similar to those of copyright in the United States, in that they protect both the breeder's financial interests in the variety and his recognition for achievement and labor in the breeding process. The breeder must authorize any actions taken in propagating the new variety, including selling and marketing, importing and exporting, keeping stock of, and reproducing. This means that the breeder can, for example, require a licensing fee for any company interested in reproducing his variety for sale. The breeder  also has the right to name the new variety, based on certain guidelines that  prevent  prevent the name from being deliberately deliberately misleading or t oo similar to another  variety's name. There are explicit exceptions to the rights of the breeder, known as the "breeder's exemption clause", that make it unnecessary to receive authorization for the use of a protected protected variety where those rights ri ghts interfere i n the use of the variety for a private individual's non -monetary benefit, or the use of the variety for further research. For example, the breeder's rights do not cover the use of the variety for subsistence subsistence farming, though though they do cover the use of the var iety for  cash crop farming. Additionally, the breeder's authorization is not required to use a protected variety for experimental purposes, or for breeding other  varieties, as long as the new varieties are not "essentially derivative" of the   protected variety. The Convention specifies that the breeder's right must be granted for at least 20 years from grant date, except in the case of varieties of trees or vines, in which case the duration must be at least 25 years. Finally, there are provisions for how to negate granted breeders' rights if the rights are determined to be unfounded. That is, if it is discovered after the application has been granted that the variety is not actually novel or distinct, or  if it is discovered to not be uniform or stable, the breeder's rights are nullified. In addition, if it is discovered that the person who applied for protection of the variety is not the actual breeder, the rights are nullified unless they can be

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Plant Plant breeders' rights (PBR): It also known as plant variety rights (PVR), are rights granted to the breeder of a new variety of plant that give them exclusive control over the propagating material (including seed, cuttings, divisions, tissue culture) and harvested material (cut flowers, fruit, foliage) folia ge) of a new variety for a number of years. With these rights, the breeder can choose to become the exclusive marketer of  the variety, or to license the variety to others. In order to qualify for these exclusive exclusive rights by plant breeders' rights, a variety variety must be new, distinct, uniform and stable. A variety is new if it has not been commercialized for more than one year in the country of protection. A variety is distinct if it differs from all other known varieties varieties by one or more important botanical botanical characteris characteris tics, such as height, maturity, color, etc. A variety is uniform if the plant characteristics are consistent from plant to plant within the variety. A variety is stable if the plant characteristics are genetically fixed and therefore remain the same from generation to generation, or after a cycle of reproduction in the case of hybrid varieties. The breeder must also give the variety an acceptable "denomination," which becomes its generic name and must be used by anyone who markets the variety. Typically, plant variety rights are granted by national offices, after examination. Seed is submitted to the plant variety office, who grow it for one or more seasons, to check that it is distinct, stable, and uniform. If these tests are passed, exclusive rights are granted for a period of 20 years (or 25 years, for trees and vines). Annual renewal fees are required to maintain the rights. Breeders can bring suit to enforce their rights and can recover damages for 

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

India India Shoul hould Not Join UPOV U POV:: Gene Campaign opposes India¶s joining UPOV because UPOV does not address our needs and because because its working is totally alien to the conditions of  agriculture prevailing in the countries of the South. We believe that developing countries countries must create their own platform, platform, which will grant Farmers¶ Rights distinct from Breeders¶ Rights, and be geared to work towards food and nutritional nutritional security in our countries. There is no concept of Farmers¶ Farmers¶ Rights in the UPOV system, rights are granted only to the breeder, which in today¶s context means the seed companies. UPOV laws are formulated by industrial, not agricultural economies. In these countries the farming community is by and large rich and constitutes from two to five percent of the population. These countries countries do not have the large numbers of small and marginal farmers that we do.

CoFaB, CoFaB, a Devel Developing Countr y Alterna ternative to UPOV UPOV:: Gene Campaign, along with Centre for Environment and Agriculture Development, Development, has drafted an alternative alternative treaty to UPOV to provide a forum for  developing developing countries to impl ement their Farmers¶ and Breeders¶ Rights. This treaty is called the Convention Convention of Farmers and Breeders, Breeders, CoFaB for short. CoFaB reflects developing country country strengths and vulnerabilities vulnerabilities and seeks to secure their interests in agricultural policy-making. The UNDP Human Development Report 1999 commended CoFaB as a µstrong and coordinated coordinated international proposal which offers developing countries an alternative to following European legislation by focusing legislation on need to protect farmers¶ rights to save and reuse seed and to fulfil the food and nutritional security goals of their people.¶ Gene Campaign¶s purpose in drafting an alternative to UPOV was to provide the basis basis for a discussion on what kind of 

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

Trusted by over 1 million members

Try Scribd FREE for 30 days to access over 125 million titles without ads or interruptions! Start Free Trial Cancel Anytime.

 be ordered to grant a compulsory compulsory license under certain conditions, conditions, including the  payment  payment of a reasonable license fee. However, However, no compulsory compulsory license will be awarded if the Breeder can demonstrate demonstrate reasonable grounds for his inability to  produce the seed.

Concl Conclusion: So we can conclude that the protection of plants varities and farmers act  provides many rights to the farmers and also to the breaders of the new seed and the varities of the plants. This acts ensures the safety of the farmes they  provides  provides them some special specia l rights like to sell their seeds etc so thats their  interest is saved. The UPOV convention also provides some unique rights to the  breeders for the protection of new varities of the plants and the seeds.Under this act there is also the provision of compoulsary compou lsary licensing for the public interest.