NGOs urge India to take lead, reject UPOV

A number of international NGOs are advising India against acceding to the UPOV regime protecting intellectual property rights to plant varieties, lest multinational corporations wrest control over seed supply away from the country’s farmers.

by Kanaga Raja

GENEVA: Several leading international civil society groups have urged the Indian government to take the lead for developing countries by resisting pressure to join the International Union for the Protection of New Varieties of Plants (UPOV).

UPOV is a part of the World Intellectual Property Organization (WIPO) and its sheaf of intellectual property agreements. UPOV and WIPO, the NGOs have been charging, are ignoring developing-country or public interests and promoting corporate interests. Some of them note that the UK-appointed independent Commission on Intellectual Property Rights has been very critical not only of the World Trade Organization and its Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), but also of WIPO and its slew of agreements and efforts to use WIPO to harmonize (to the US and European) norms and standards everywhere.

At a press briefing on 17 October, three leading NGOs - ActionAid, Consumers International and Gene Campaign - joined forces to urge India, which already has the world’s only legislation guaranteeing farmers’ rights, not to join UPOV and risk losing the comprehensive protection for farmers that is already in place.

Ten steps forward,

100 steps back

According to Dr Suman Sahai of Gene Campaign, an Indian NGO that said it had helped in the drafting process of the Indian law, the three groups are alarmed at India’s decision to join UPOV.

India had spent 7-8 years drafting a comprehensive law, with the active participation of civil society, on farmers’ rights that does not comply with UPOV. The Indian law that went into effect in September 2001 was compliant with the WTO in respect of plant breeders’ rights.

Dr Sahai said that the Indian law was the only law in the world that provided for comprehensive farmers’ rights including the rights of farmers over seeds, as well as protection against bad seeds provided by breeders and the right to compensation. Farmers were also protected from the so-called “terminator seed” technology.

However, Dr Sahai appeared to be at a loss to explain why India, after spending 7-8 years developing comprehensive protection for farmers, has decided to join UPOV. She said that India, regrettably, has succumbed to pressure to join UPOV, adding that India was “taking 10 steps forwards but 100 steps backwards.”

Under UPOV, which originally was set up by the seed industry, there are no formulations for farmers’ rights. If India joins UPOV, it would have to give up its existing national legislation and abide by UPOV’s provisions.

Dr Sahai said that “we are at a bizarre juncture where India spent 7-8 years developing a comprehensive law ... but in an extremely peculiar development, has decided to join UPOV.”

Dr Sahai said that Gene Campaign has filed a petition in an Indian court challenging UPOV and is seeking an injunction to ensure that the farmers are not required to forfeit any rights that have already been granted to them.

The UPOV was to meet on 21 October where India’s case would be discussed. (At that meeting, the UPOV Council decided to seek further clarification from the Indian government on the country’s farmers’ rights law.) According to Dr Sahai, the Indian government could not take a decision on UPOV until the Indian court has decided the case, otherwise it would be tantamount to contempt of court.

Dr Sahai noted that the official Indian explanation for its decision to join UPOV was that the Indian plant breeders’ rights for varieties that are developed in India would be protected in other countries. Currently, India’s plant breeders, mainly public research organizations, have developed sugar cane, spices and some varieties of wheat.

Dr Sahai however pointed out that this explanation was somewhat curious in that the countries of Africa, for example, where the Indian varieties could be utilized, are not members of UPOV. The plant breeders’ rights can only be protected in a country that is signatory to UPOV.

Indian alternative

Dr Sahai ventured the opinion that UPOV has been very interested in getting India on board, since India would be the first Asian developing country to join UPOV. Moreover, UPOV has been willing to make an exception for India to join UPOV 1978 when other countries acceding for the first time are being asked to join UPOV 1991.

The three groups believe that the reason for UPOV “bending over backwards” to accommodate India is that it cannot afford to have India outside the system because once it is outside, it becomes the focus for an alternative.

Rajeswari Kanniah of Consumers International, Asia Pacific Office, also said that India is the first Asian developing country that has gone to UPOV. India’s joining UPOV could have “a domino effect” on nine other Asian developing countries that are currently consulting UPOV on their national legislations. “If India caves in, all other nine countries may do so as well,” she warned.

The nine countries involved are Indonesia, Malaysia, Pakistan, Philippines, Sri Lanka and Vietnam, while Bangladesh, Cambodia and Vietnam are reported to be under pressure to join UPOV through bilateral treaties. Some of these countries have already drafted good sui generis legislation and if they cave in, their positive developments could be wiped out, Kanniah pointed out.

In 1999, the EU signed an agreement with Bangladesh where Bangladesh was to adopt a UPOV-style agreement. The US government recently signed an agreement with Vietnam, where Vietnam agreed to adopt UPOV.

Kanniah also referred to a recent report by the independent Commission on Intellectual Property Rights that concluded that patents or the TRIPS provisions were not compatible with developing countries and that these countries should come up with their own sui generis laws for protecting plant varieties.

“If India joins UPOV, it could spell disaster for millions of the country’s poorest farmers. India has the opportunity to act as a trailblazer for other developing countries who are also being forced to join,” said Dr Sahai.

Dr Sahai urged India to resist pressure to adopt damaging international legislation that would shift control over seed production and supply away from farmers and into the hands of multinational corporations.

“India’s priority must be to ensure the self-reliance of its farming communities, so that they can continue to provide affordable food for the people and make a living,” said Ruchi Tripathi, food rights campaigner for ActionAid UK.

Tripathi also pointed to various pressures being applied to countries to join UPOV. She cited the case of the Organization of African Unity (OAU) that came up with its own model law. According to her, when the OAU approached WIPO for its opinion on the law, the OAU was told that its model law was not compatible with the TRIPS Agreement.

She also complained that when countries approach WIPO, headed by Dr Kamil Idris, over WTO-TRIPS issues about sui generis systems and plant breeders’ rights, WIPO refers them to UPOV, which in turn gives them wrong advice and says that a sui generis system has to be UPOV’s.

India’s membership in UPOV could have a huge impact in a country where nearly 70% of people depend on agriculture to make a living. India is the only country in the world that gives farmers’ rights the same recognition as those of plant breeders.

Many developing countries fear that patents on genetic resources for food and agriculture could potentially raise the cost of seed and agricultural inputs, making them unaffordable for small farmers in developing countries. Six multinationals control around 70% of the patents held in staple food crops. Thus, if seeds and agricultural inputs fall into the hands of private corporations, there will be less incentive for agricultural research.

This could also have implications for farmers’ rights to save, use, exchange and sell seeds. For these reasons, most developing countries do not want patent protection for new plant varieties and are instead looking to develop and implement plant breeders’ rights legislation, or a sui generis system, in line with Art 27.3b of the TRIPS Agreement.

The TRIPS Agreement itself makes no mention of UPOV and there is nothing in the TRIPS Agreement that would not allow the incorporation of farmers’ rights into sui generis plant variety protection legislation, the NGOs say.

The three NGOs argue that UPOV is not suitable for farmers and food security in that it restricts farmers’ rights to save, grow and sell seed; reduces access to seed and genetic resources; makes seeds more expensive for small farmers; reduces plant varieties available for cultivation; favours large-scale industrialized agriculture over small-scale subsistence farming; allows large multinationals to monopolize the seed industry; and discounts the contribution of farmers in breeding and preserving plant varieties over generations.

The three organizations suggest that alternatives exist to UPOV and cite the model law drafted by the OAU and Gene Campaign’s Convention on Farmers and Breeders (CoFaB). For domestic legislation, the groups say that India’s Plant Variety Protection and Farmers Rights Act, 2001 could serve as a model for developing countries. (SUNS5215)

From Third World Economics No. 294 (1-15 December 2002)