Trips Flexibilities and India's Plant Variety Protection Regime: the way Forward

• Author: R. Moonka - S. Mukherjee
• Position: Institute of Law, Nirma University (Ahmedabad, India) - Institute of Law, Nirma University (Ahmedabad, India)
• Pages: 117-139

BRICS LAW JOURNAL Volume V (2018) Issue 1

TRIPS FLEXIBILITIES anD InDIa’S PLanT VaRIETY PRoTECTIon REGIME:

THE waY FoRwaRD

ROHIT MOONKA,

Institute of Law, Nirma University (Ahmedabad, India)

SILKY MUKHERJEE,

Institute of Law, Nirma University (Ahmedabad, India)

DOI: 10.21684/2412-2343-2017-5-1-117-139

Article 27.3(b) of the TRIPS Agreement provides that members shall provide for protection

of plant varieties either by patents or by an eective sui generis protection or b oth.

While WTO member countries can choose from among intellectual property strategies

to protect plant varieties, they may not choose to exclude plant varieties from IP rights

protection without facing trade sanctions from the WTO dispute resolution body. The

open-ended language of the article creates a exible standard of protection sympathetic

to developing nations’ socio- economic priorities, provided that the effectiveness

requirement is satised. This exibility presents a range of possibilities from systems

like the plant patent regime of the United States or specic variety protection systems

of the European Union to the possibility of customized plant protection regimes suited

to the needs of developing nations.

India, while complying with the requirements of the TRIPS Agreement for the protection

of plant varieties, enacted the Protection of Plant Varieties and Farmers’ Rights Act. The

fundamental ideology of the PPVFR Act is to address India’s concerns about protecting

the rights of small and marginal farming communities, while at the same time promoting

plant breeding by vesting adequate IP rights protection which will boost further research

and innovation in this eld.

This paper argues that as it is necessary to recognize and protect the rights of farmers

in respect of their contribution made at any time in conserving, improving and making

available plant genetic resources for the development of new plant varieties, the PPVFR

Act has maintained a balance between breeders’ rights and farmers’ rights. The PPVFR

Act protects farmers’ rights to save, use, exchange and share all farm produce, including

BRICS LAW JOURNAL Volume V (2018) Issue 1 118

seeds that fall within the purview of the Act, and it provides protection of indigenous

knowledge against unwary monetization.

Keywords: plant variety protection; TRIPS; India; farmers’ rights.

Recommended citation: Rohit Moonka & Silky Muk herjee, TRIPS Flexibilities and

India’s Plant Variety Protection Regime: The Way Forward, 5(1) BRICS Law Journal 117–

139 (2018).

Introduction

For decades, Indian policy on plant varieties and seeds was based on the principle

of the common heritage of mank ind. Post-independence, Indian governments

adopted a system wherein plant breeding activities were largely conned to the

public sector post-independence to address national food security issues.1 This

policy to a large extent succeeded when at the end of the 1970s India achieved the

milestone of transitioning from being an impor ter of foodgrains to achieving self-

suciency in food.2 India did not want monopolies to develop in crucial areas like

agriculture and hence the government produced seeds through its own agencies

and distributed them cheaply to the public. India’s move towards promoting farming

trade was partly prompted by the entry of overseas seed corporations into the Indian

market in the early 1980s, which gave rise to demands for Intellectual Property (IP)

rights protection.3 Further, India, being a World Trade Organization (WTO) member

was required to adhere to the standards set out in the Agreement on Trade-Related

Aspects of Intellectual Property Rights (TRIPS) for the protection of plant varieties.4

From there, India had to shift its age -old principle of common heritage and was

obliged to provide protection to plant varieties either through patent or a sui generis

system, or a combination of both.

The Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 20015 is

primarily considered as an upshot of the pressures from India’s membership in

1 N.S. Gopalakrishnan, An “Eective” Sui Generis Law to Protect Plant Varieties and Farmers’ Rights in India,

4(1) Journal of World Intellectual Property 157, 158 (2001).

2 India: Economic Development: Evolution of Policy (September 1995) (Feb. 10, 2018), available at http://

www.country-data.com/cgi-bin/query/r-6093.html.

3 Id.

4 TRIPS Agreement, Art. 27.3(b) (Feb. 10, 2018), available at https://ww w.wto.org/english/docs_e/

legal_e/27-trips.pdf.

5 The Protection of Plant Varieties and Farmers’ Rights Act, No. 53 of 2001, India Code (2001), Vol. 64, at

1 (Feb. 10, 2018), available at http://www.plantauthority.gov.in/pdf/PPV&FRAct2001.pdf (hereinafter

PPVFRA).