India had already made a significant policy shift towards a pro-intellectual property (IP) position in the seed sector two decades ago, when it became a member of the World Trade Organisation (WTO) in 1995. Many existing laws were amended, including three amendments to the Patent Act of 1970, which allow for the patenting of seeds produced by non-biological methods such as found in modern biotechnology. Also, new IP laws were made that have an impact on agriculture: the Geographic Indications Act, 1999, and more importantly the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001, to bring India’s seed sector in line with the WTO TRIPS’ requirements.
Unlike previous intellectual property rights, the genesis of the national IPR policy is not a binding multilateral agreement, but a bilateral relationship – one between India and the US government.
In early September 2014, Minister of State for Commerce and Industry Nirmala Sitharaman announced that India would get a ‘new’ policy on IPR within a period of six months. An IPR think tank was constituted by the Department of Industrial Policy & Promotion (DIPP) under the commerce ministry in October 2014 and a press release announcing the same was issued on October 24, 2014. Among the terms of reference of the think tank, drafting the national IPR policy topped the list. The ministry, through its DIPP, announced the first draft of the national IPR policy on December 30, 2014, and even invited those interested to submit their comments on or before January 30, 2015. The IPR think tank submitted its final draft to DIPP in April 2015.
Prime Minister Narendra Modi undertook his maiden visit to the US at the end of September 2014. There has since been a deepening bilateralism between India and the US, particularly on the issue of IP. This includes the establishment of a joint Indo-US IP working group. The new DIPP policy must be viewed in the backdrop of this relationship. The final text approved by the union cabinet was made public earlier this month on May 13, days before Modi’s next planned visit to the US for a bilateral summit with President Barack Obama in early June.
The sector-wise content of the policy gives a different tone and tenor to IP, hitherto unseen in the area of agriculture.
Prior to the passing of the first law on IP on crop varieties – the PPV&FR Act, 2001 – the official line was that while India needed to be compliant with the WTO TRIPS, it was going to exercise its right as a developing country to choose the sui generis option that the TRIPS Agreement itself gave to the ‘third world’. This was to signal that while India respects international treaty obligations, it was not willing to go all out on IPR on seeds. This position was rooted in the Indian ethos on the subject and the anti-WTO sentiment on the part of farmers’ groups. Small farmers and seed savers in India have never made a demand for IPR regimes within the country or even, for that matter, outside it. In fact, there has been stiff opposition to TRIPS and any TRIPS-like or ‘TRIPS-plus’ trade rules ever since. Farmer-managed seed systems of innovation depend on the free sharing and exchange of planting material, which guarantees both diversity and a wide range of varieties to select from. Moreover, farmers do not treat seeds as private property as IPRs allow you to do.
The experience with the implementation of the PPV&FR Act, with respect to the granting of IPR in the form of plant variety certificates to farmers ought to have fed back into the policy. Real time data shows that despite the fact that over 600 farmers’ varieties (FVs) have been registered under the PPV law to date, not one has been introduced in the official seed supply chain. Neither has a single case of access and benefit sharing brought benefits to those farmers whose varieties may have been used to develop commercially marketable varieties.
The text of the national IPR policy had indicated a heightened push for IPR in the seed sector and that more farmers would be encouraged to file for registration of farmers’ varieties (FVs). This is despite the fact that the draft policy statement acknowledged that benefit sharing (with farmers) and commercialisation (of FVs) are two areas that need attention.
The emphasis of the policy is to create awareness about the importance of IPRs as a marketable financial asset and economic tool. This is completely counter to the idea of seeds as a shared intellectual heritage of local communities. It also disregards the fact that registration of varieties under the IP law has not brought money to farmers, except for the cash awards that the PPV&FR authority give out to those it calls ‘genome saviours’. The government has argued that the PPV is a pre-emptive measure to register one’s claim to a variety before a company or a scientist can and seek rent from it if used as base material. Instead, farmers have had to incur costs for registration and annual fees to maintain their registration certificates, which only recently, due to public opposition, have been reduced to a token 10 rupees per year for FVs.
The policy claims that (i)n the area of plant varieties and farmers’ rights, the number of filings and registrations are very encouraging. This is because the government has insisted that the PPV&FR authority step up the promotional activities on this front and not because farmers are voluntarily embracing IPRs as the government would like them to. Field staff members, such as those in India’s krishi vigyan kendras and other technical personnel of the Indian Council of Agricultural Research system, are being offered cash incentives to get more farmers to file for IPR. This is also the thrust of the new policy.
The policy talks of IP for higher sustainable agricultural production at a time when the Ministry of Agriculture is pursuing a complaint against an American multinational firm Monsanto in India for overpricing its IP-protected seed technologies in cotton. This is even though the policy text states that licensing practices or conditions that may have an adverse effect on competition will be addressed through appropriate measures, including regulation of anti-competitive conduct in the market by the Competition Commission of India.
The fact that the policy did not exist when the agriculture ministry complaint was initiated proves that the policy was not needed to take such action. It would have been possible even under the existing provisions of the PPV&FR law.
One of the biggest concerns of farmers is that the government should not give in to demands for higher than TRIPS standards in the seed sector. For that would mean more restrictions on farmers’ seed freedoms and the likelihood of prices of IPR-protected seeds increasing input costs. The pressure comes in the form of the demand to join the International Union for the Protection of New Varieties of Plants (UPOV). The IPR policy does not secure the country from the aggressive seed industry and the more powerful governments in the region, which are raising these demands in negotiations of free trade agreements (FTAs) and bilateral investment treaties or mega-regional FTAs, such as the Regional Comprehensive Economic Partnership (RCEP) in the Asia Pacific region.
The policy clearly mentions that India will “(e)ngage constructively in the negotiation of international treaties and agreements in consultation with stakeholders; examine accession to some multilateral treaties which are in India’s interest; [and] become signatory to those treaties which India has de facto implemented to enable it to participate in their decision making process.” Consultation with farmers on treaties is usually either absent or limited to handpicked representatives. Trade treaties in-the-making (such as RCEP) demand member countries to accede to UPOV. India already de facto implements UPOV-style plant variety protection through its PPV&FR Act. To suggest that for that reason the country must join the club to ‘participate’ in its conversations is dangerous. The only talk therein is on how to limit farmers’ rights to seed. Instead, India should be looking at better participation in the non-IPR global ‘plant treaty’ – the United Nations Food and Agriculture Organisation’s International Treaty on Plant Genetic Resources for Food and Agriculture – to deepen engagement with farmers’ rights and their enforcement the world over.
Aside from the seed sector, the emphasis on IP in the biodiversity sector and the knowledge among those concerned is something that is dealt with at length in the policy. It does acknowledge the considerable unexplored potential for developing, promoting and utilising traditional knowledge, which comprises one of India’s unique endowments. But there too the focus is on commercialising traditional knowledge, particularly now with DIPP as the nodal governmental agency on IP. The policymakers forget that IPR is not needed for commercialisation, if the knowledge-holders wish to go down that route at all.
The biggest difference between the draft and final policy text is that the latter obviously is the work of politicians. Language that admitted the failings of the IP system with regard to PVP has quite obviously been omitted in the final version. The opportunity to bring in learning from the hands-on experience with the PPV&FR Act that preceded the policy has been lost. That learning could also have fed into our international advocacy in solidarity with the Southern world for a pushback against the tighter IPR enforcement being demanded at global IP & trade fora.
If this policy is here to stay, the comprehensive IP audit or the baseline survey that it talks about should be the first priority for implementation. In fact, that ought to have been built into the design of the policy-making process itself. For that might well show that simply more IPRs does not mean more ‘development’ or better lives for farmers. As prescribed by the policy, stakeholder consultation to keep laws updated in consonance with national needs must be a priority. Such a practice would nurture democracy.
Shalini Bhutani is a legal researcher and policy analyst working on the impact of trade rules in the Asian region.