AN "EFFECTIVE" SUI GENERIS LAW TO PROTECT PLANT VARIETIES AND FARMER'S RIGHT IN INDIA - A CRITIQUE

 Introduction

Intellectual property protection of new plant varieties has been in the debate ever since plant breeding became a corporate commercial venture[1]. It was at the instance of the global seed industries that a specific provision for intellectual property protection of new plant varieties was introduced in the TRIPS Agreement[2]. It is now mandatory that members of the WTO must introduce legal measure either in the form of patent or an "effective" sui generis law or a combination of both to protect plant varieties[3]. There was stiff resistance from many developing countries including India and farmer's groups against the introduction of such a provision in the TRIPS Agreement[4]. The concern for providing food security to the people of the country forced many nations to keep plant varieties out of IPR protection. The diverse pattern of agriculture, the traditional methods of breeding and farming followed in the developing countries resulted in the generation of many customary rights to the farmers. It was felt that these rights were going to be threatened by the introduction of IPR protection for new plant varieties. The present temporary provision in the TRIPS was introduced to give much freedom to the member countries to legislate taking note of their domestic concerns. This seems to be the reason for not linking the International Convention for the Protection of New Varieties of Plants (UPOV Convention) with the TRIPS Agreement[5].

In India plant breeding was confined to the public sector. This was adopted keeping in mind the food security of Indian population. It did yield good results by way of green revolution and increase in development of new crop varieties. There was also no demand for IPR protection since the research activity was confined to public sector. Till recently agriculture was not treated as an industrial activity. This scenario got changed in late 1980s, when foreign seed corporations were allowed to enter Indian market, and this development gave rise to demands for IPR protection. The Protection of Plant Varieties and Farmer's Rights Bill 1999[6] is an out come of the pressure of the foreign players in the Indian market using WTO as an effective tool. This is evident from the fact that the Bill is structured keeping in mind the UPOV, 1991 even though India is not bound to follow the same[7].

It is clear from Article 27(3)(b) that a country like India has three options with reference to protecting plant varieties. The first one is to treat new plant varieties as inventions and provide patent protection under the patent law following the norms in the TRIPS. The second option is to develop an "effective" sui generis law for the protection of plant varieties. The TRIPS has not laid down any guidelines for the sui generis law. Probably UPOV could be accepted as laying down general norms on a possible sui generis law. But the liberal norms in the 1978 version of UPOV were revised in 1991 and the norms were tightened in favour of the breeders[8]. It is however argued that the protection based on the norms laid down in UPOV, 1991 is similar to that of patent protection the reasons being the new criteria for protection, procedure for registration, nature of the rights of the breeders, substantial watering down of the exemptions given to the researchers and farmers' etc. It is relevant to note here that since the word "effective" sui generis is used in TRIPS it is apprehended that countries like India are bound to follow UPOV, 1991 for providing plant varieties protection[9]. The third option is to have a law that is a combination of "patent and sui generis" for which there is no model available in the world.

None of the three options seems to have been adopted in drafting the Protection of Plant Varieties and Farmers' Rights Bill in India. The Bill was referred to the Joint Committee of both Houses of Parliament and the revised Bill submitted is pending for consideration[10]. The original Bill incorporated provisions beneficial to the breeder from the UPOV 1991 and introduced a set of new norms for the protection of the interests of the farmers' that are out side the scope of UPOV 1991. There was no provision for the registration of farmers' variety or treating farmer as a breeder in the original Bill. Considering the representations from various organizations the Joint Committee introduced new definitions for breeder, extant variety, farmers' variety and variety to protect the interests of the farmers'. The Committee also included farmers' variety and extant variety for registration by the farmers just like a newly bred variety without making appropriate changes in other provisions of the Bill originally designed for the registration and protection of newly bred variety by modern breeders. This resulted in utter confusion and absurd situations. This approach is faulty and will not help to protect neither the interest of the breeders nor the interest of the farmers in the context of globalization. The paper attempts to establish that the provisions of the Bill fail to achieve the objectives of opting for a sui generis model for protecting plant varieties. It is argued that opting for a patent frame work will be better if the intention is to attract private investment that too foreign for plant breeding. It seems that only a separate legislation protecting the traditional knowledge of the farmers' will safeguard the interest of the local communities. It is argued that India must go for patent protection for breeders under the Indian Patent Act and a sui generis law for the protection of the interest of the farmers'.

Objectives of the Bill

It is obvious from the preamble of the Bill that this law is introduced primarily to satisfy the obligation under Article 27(3)(b) of the TRIPS Agreement[11]. But it is doubtful whether as per TRIPS it is obligatory for India to make a law before 1-1-2000. Article 27(3)(b) is introduced to exclude certain biotech products and processes from patent protection. If one examines the history of this provision, it is clear that this was introduced as a temporary arrangement[12]. This is made clear by the mandatory review of this clause after expiry of 4 years from the date of entry into force of the TRIPS Agreement ie., 31-12-1999. Since the review is mandatory there is bound to be changes in the provision. It is however not mandatory for a developing country to introduce the law before review. More over. Article 65 of the TRIPS gives transitional period to facilitate the developing countries to make necessary changes in the domestic industrial policy before new laws are introduced. The additional period of 5 years is given in areas where there is no product patent protection at the time of entering into force of the Agreement. As far as India is concerned we are not providing product patent protection for any biotech products. So we are entitled to enjoy the additional period before providing protection for any biotech products be it through patent or a sui generis law. In fact it was under this assumption that India accepted the TRIPS Agreement[13]. In reality there is no difference between a patent law and the sui generis law introduced in India considering the rights given to the breeders of the new plant varieties. Considering our  domestic problems we should have delayed the introduction of the Bill at least till the review process is over.

Varieties Protected

The Bill proposes to protect the variety that include a genera or species as notified by the Central Government, an extant variety and a farmers' variety[14]. The term variety in relation to plants has been defined to mean "a plant grouping except micro-organisms within a single botanical taxon of the lowest known rank, which can be-i.     defined by the expression of the characteristics resulting from a given genotype of that plant grouping; ii.     distinguished from any other plant grouping by expression of at least one of the said characteristics; and iii.    considered as a unit with regard to its suitability for being propagated, which remains unchanged after such propagation, and includes propagating material of such variety, extant variety, transgenic variety, farmers' variety and essentially derived variety[15].

But the Central Government has the power to limit the genera or species that can claim protection on certain specified grounds[16]. It is made clear that for the purpose of claiming protection under the Act the genera or species .must be specified in the list notified by the Central Government[17]. Public interest is the only ground on which any genera or species could be excluded from the list[18]. The term "public interest" has not been defined in the Bill. This places unrestricted power in the hands of Central Government to decide the kinds of genera or species that could be excluded from the purview of protection. There are a number of genera or species in the area of rice, wheat, pulses etc., that are important for the purpose of protecting the food security of the country. The availability of new varieties in this area without monopoly helped India to achieve "self sufficiency" in food production. It is apprehended that IPR protection in these areas will affect the food security of India[19]. The question is whether the Government is going to exclude genera or species that are necessary to ensure food security on the ground of public interest from protection? Given the objectives of the Bill ie., to "promote foreign investment", not many genera or species are going to be excluded[20]. The better strategy could be to specify clearly in the Bill itself the items that are excluded on the ground of public interest[21]. Even if the Government excludes some items the notifications are going to be challenged before the court of law on the grounds of excessive delegation and violation of the right to property of the breeder over his intellectual labor. The provisions also give power to take away a genera or species from the list once notified on the grounds of public interest.

Another ground on which protection can be denied to a variety is where the commercial exploitation of the variety is prevented to protect (i) public order; (ii) morality; (iii) human, animal and plant life and health and (iv) avoid serious prejudice to the environment[22]. These grounds are similar to the grounds stated in the TRIPS Agreement for the exclusion of inventions from patent protection[23]. It is also made clear that a variety containing any gene or gene sequence involving any technology, including genetically used restriction technology and terminator technology, that is injurious to the life or health of human beings, animals or plants are excluded from protection[24]. Thus it appears that many varieties based on termination technology could be protected under the law if it is not injurious. But it is interesting to note that the applicant for registration of a new variety must give an affidavit that the variety does not contain any gene or gene sequence involving terminator technology[25]. This gives an impression that it is not possible to file an application for protection of new varieties based on terminator technology. If the intention is to exclude variety based on terminator technology, it is better to expressly provide for this in the section. There is no mandate even under UPOV to protect terminator technology based variety. It is argued that seeds produced based on terminator technology not only prevents the former from re-using the farm products as seeds but also causes serious threat to the traditional varieties and environment. Considering this it is in our best interest that we expressly exclude terminator technology based varieties from any form of protection.

Protection is also possible for 'extant variety' and 'farmers' variety'. Extant variety is defined to include a variety available in India which is notified under Section 5 of the Seeds Act, 1966 or a farmers' variety or a variety about which there is common knowledge or any other variety which is in public domain[26]. Even though farmers' variety is included in this definition, the Bill envisages separate protection for farmers' variety. This provision was included by the Joint Committee based on the representations made by many farmers' organizations[27]. The farmers' variety is defined to mean a variety which has been traditionally cultivated and evolved by the farmers in their fields or is a wild relative or land race of a variety about which the farmers possess the common knowledge[28]. It appears that there is an overlap between these two definitions and this will create problems[29]. An "essentially derived variety" is also protected under the Bill[30]. Essentially derived variety is defined to include a variety predominantly derived from a variety protected under the law[31]. It appears that this is included on the basis of the UPOV 1991 and there is no need to protect the same keeping in mind the Indian conditions[32]. Criteria for Protection

Protection of a new variety is based on the criteria of novelty, distinctiveness, uniformity and stability[33]. It is important to note that the conditions stated in this section are for a new variety. But as far as extant variety is concerned the condition of novelty is not required and the criteria of distinctiveness, uniformity and stability will be determined as specified under the regulations made by the Authority[34]. There is no mention about the conditions to be followed in case of farmers' variety. It is clear from the definition of variety that it includes farmers' variety as well. This presupposes that for the registration of a farmers' variety the conditions of novelty, distinctiveness, uniformity and stability must be followed. But it is made clear that the farmer is not expected to give the details of these conditions in his application form[35]. This creates an uncertainty regarding the norms to be followed in care of registration of farmers' variety. It is also to be noted that the farmers' variety is included in the definition of extant variety. This gives an impression that if the farmers' variety is registered as extant variety then the norms will be based on the regulation made by the Authority for this purpose and if it is registered as a farmers' variety then the norms are similar to that of a new variety as provided in the Bill. This seems absurd since the intention behind extending protection to farmers' variety is to protect those varieties used by the farmers' that are in the public domain. It is to be remembered that the original Bill envisaged only registration of newly bred variety and the norms are set accordingly. Even though extant variety was included for protection the definition was limited and novelty requirement was exempted[36]. It is strongly felt that there must be different set of norms specifically included in the Bill for the farmers' variety.

The criteria of novelty, distinctiveness, uniformity and stability are same as that in UPOV, 1991[37]. The test of novelty is based on the commercial exploitation of the propagating or harvested material before seeking protection. The permissible period of commercial exploitation before seeking protection differ with reference to exploitation in India and abroad[38] . As far as India is concerned such commercial exploitation must be within one year before the date of filing the application for protection. In case of  exploitation outside India it is six years for trees or vines and four years in other cases[39]. It is difficult to appreciate why such a distinction is made. This means that varieties introduced in the foreign market four years prior to the commencement of the Act can be protected in India. The only condition for this is that the variety should not be commercially exploited in India with the consent of the breeder before one year of the commencement of the Act. This benefit is denied to an Indian breeder who has introduced a variety before one year of the commencement of the Act. There is no mandate in TRIPS to give such a benefit to the foreign breeders. This provision seems to have been included keeping the UPOV mandate[40] and is worse than patent protection. As per the TRIPS India is not bound to follow UPOV. Even if we give patent protection for plant varieties as per the TRIPS, the priority date for determining novelty is only one year from the date of filing the application and the novelty will be lost if the information regarding the invention is disclosed to the public before filing of the application be it in India or abroad. It is not expressly stated in the Bill that the varieties registered abroad before one year of the commencement of the Act will not be protected in India[41]. The reason for India to opt for a sui generis route is to have flexibility; we must use it in case of novelty since this will enable us to keep all the varieties commercially exploited before the commencement of the Act in the public domain.

The provision makes it clear that the trial of a new variety will not affect the condition of novelty[42]. It was further clarified that the fact that the variety has become a matter of common knowledge other than through "sale' or otherwise disposed for the purpose of exploitation" shall not affect the criteria of novelty for such variety[43]. Thus prior publication and prior knowledge of the variety other than by commercial exploitation is not a bar for protection[44]. The conditions of novelty in patent include any form of prior publication and prior use other than the secret use. Our model of sui generis law seems to be more benevolent to the breeders particularly foreign when compared to patent law.

The concept of distinctiveness is also explained in the law[45]. Accordingly the new variety must be clearly distinguishable by at least one essential characteristic from any other existing variety of common knowledge in any country. It is made clear that the filing of application for protection in any country will be treated as a matter of common knowledge of the variety for the purpose of the provision[46]. The requirement of uniformity will be satisfied if it is sufficiently uniform in its essential characteristics[47].

The stability of the variety is another condition for grant of registration. This will be satisfied if the variety in its essential characteristics remains unchanged after repeated propagation. In cases where the propagation is based on a particular cycle the essential characteristics must remain unchanged at the end of each such cycle[48]. These conditions must be satisfied even for an essentially derived variety to get protection[49]. Protection based on Registration

The protection of the new varieties under the Bill is based on registration[50]. Only persons who register the variety can enjoy the benefits of the Bill[51]. It is expressly provided that any farmer or group of farmers or community of farmers claiming to be the breeder of the variety is also entitled to file an application for registration of a new variety[52]. For the purpose of registration, in addition to the criteria for protection, the applicant must give a denomination to the variety[53]satisfying the conditions laid down in this regard[54]. The application for registration must also have a statement describing all the details of the variety satisfying the criteria for registration[55]. It is mandatory that the information regarding the variety must contain the geographical location from where the genetic material has been taken and all information regarding the contribution of the farmer, village community and

organizations in the evolution or development of the variety[56]. In addition to this there must be a declaration that the genetic material or parental material used for developing the material has been lawfully acquired[57].

The protection for farmers' variety and extant variety is also based on registration. But in case of an application for the registration of a farmers' variety there is no need to comply with any of these conditions[58]. It is not expressly stated that these conditions are not needed for the registration of an extant variety. This again seems ridiculous since extant variety includes farmers' variety and other varieties in public domain. The procedure envisaged in the original Bill was intended only for the registration of new variety. The inclusion of farmers' variety and extant variety with new definitions by the Joint Committee for registration as a variety has created this situation. If the conditions for registration of these varieties are not similar the procedure must also be different. To avoid confusion it is better to have separate procedure for the registration of farmers' variety and extant variety.

The Registrar can conduct any inquiry including test of the variety before accepting the application[59]. Before giving registration the application will be advertised for filing of opposition by interested parties[60]. Only after clearing the grounds of opposition registration can be given and a certificate issued[61]. These procedures seem necessary for farmers' variety and extant variety since there is no express exclusion in this regard. The procedure is based on UPOV and seems to be similar to that followed for registration of inventions for patent protection. The law is creating an additional set of authorities for this purpose including a Tribunal[62]. Since the procedure is same as that of patent there is no need for a separate authority. It is worth considering the utilization of the existing authorities under the Patent Act by creating a special wing for the purpose of registering plant varieties. The Intellectual Property Appellate Board established under section 83 of the Trade Mark Act, 1999 is proposed to be extended to Patent Act as well by the Patent (Second Amendment) Bill, 1999 pending before Parliament. This can avoid unnecessary bureaucratization and save our scarce resources. Term of Protection, Rights and Transfer of Rights

The term of protection fixed by law for a registered variety is different for different items. In case of trees and vines it is 18 years from the date of registration. In case of extant variety, it is 15 years from the date of notification of that variety by the Central Government under section 5 of the Seeds Act 1966. This provision also creates problem. As per the definition of the extant variety not only Government notified variety but also 'farmers' variety', 'variety commonly known' and 'other public domain variety' are included. There is no mention about the duration of protection of these varieties. The duration of the protection of farmers' variety is also not expressly mentioned. It is stated that in all other cases it is 15 years from the date of registration of the variety[63]. This presupposes that the provision is applicable to farmers' variety and other extant varieties as well since the definition of variety includes extant variety and farmers' variety[64]. It is also made clear that the registration is valid for nine years for trees and vines and six years for other crops and may be renewed from time to time for a similar period till the end of the total term of protection[65]. This again seems absurd and there is a need to make it clear that this provision is applicable only to new varieties and there must be separate norms for farmers' variety and extant variety. It shows the failure of the Joint Committee to anticipate the problems that will be created once the farmers' variety and extant variety are treated along with new varieties for registration and protection.

During the existence of a valid registration for a variety issued under the Act the breeder or his successor, his agent or licensee shall have the exclusive right to produce, sell, market, distribute, import or export the variety[66]. It is expressly stated that in case of extant variety the ownership of the rights granted under this provision will be with the Central Government or the State Government as the case may be if the breeder or his successor failed to establish his right[67]. This implies that these rights and obligations are available to farmers' variety, variety about which there is common knowledge and other varieties in the public domain that are registered as extant variety. Since the rights granted under this section are not confined to new varieties it presupposes that the farmers' varieties registered by the farmers are also entitled for these rights. This seems not the intention of this section as envisaged originally. There is no provision introduced in the Bill by the Joint Committee expressly excluding the farmers' variety from this provision. Nor there a provision introduced in the Bill giving separate rights for the farmers' variety. From the definition of the term breeder it is clear that it includes not only a farmer who bred a variety but also a farmer who evolved a variety[68]. This means that the farmer who registered a farmers' variety could be treated as a breeder for the purpose of enjoying the breeders' right. It appears that the inclusion of the farmers' variety and the new definition given to the extant variety, breeder etc. by the Joint Committee to protect the interest of the farmer with out making necessary changes in other provisions of the Bill exclusively meant for breeders of newly bred variety have made the Bill a complex one.

Limitations on Breeders' Right

One of the limitations of the breeders' right is the right of the researcher to do experiment or research using the protected variety and also to use it as an initial source of variety for the purpose of creating other varieties[69]. The Bill envisages revocation of the registration after hearing the breeder[70]. The grounds in addition to the non-fulfillment of statutory requirements for registration include failure to provide seeds or propagating materials to the holder of compulsory license, failure to comply with any of the directions issued by the Authority under the Act and in public interest[71]. There is no express provision for revocation for failure to pay benefit sharing or compensation to community. It may be possible to include this within the clause permitting revocation of registration for failure to comply with the orders of the Authority. But in the light of express remedies for the recovery of arrears this may not be permissible[72].

The Bill also envisages granting of compulsory licenses to interested persons to use the protected variety in case of failure by the breeder to satisfy the reasonable requirements of the public by providing seeds at a reasonable price or it becoming otherwise non-available[73]. The license is available only for production, sale and distribution of the seed or other propagating material of the variety that too after the expiring of three years from the date of issue of the certificate of registration. This is the same as that of the provisions in the Patent Act. But what is lacking in the Bill is a definition or explanation for what constitute "reasonable requirement of the public". The Patent Act has an elaborate provision in this regard[74]. Its incorporation in the Bill would be desirable. Section 42 of the Bill in this regard is misleading and inadequate. It seems that the conditions to be taken note of by the Authority to grant compulsory license is to find out the steps taken by the breeder to meet the requirements of the public and to assess the capability, ability and technical competence of 'the applicant[75]. It appears that the reasonable requirement is confined to the availability of the seeds in the market. It is expressly provided that grant of compulsory licence cannot be extended to import variety from abroad if such import constitute infringement of the rights of the breeder[76]. It is to be noted at this juncture that the Patent (Second Amendment) Bill, 1999 has an express provision for parallel import of patented products[77]. It will be good if a similar provision is included here as well. The Bill also makes it clear that the duration of the compulsory licence can be limited and it will vary from case to case keeping in view the gestation periods and other relevant factors and should not exceed the total remaining period of the protection of that variety[78]. This will discourage people from going for compulsory licences and make the provision ineffective. Since these provisions are applicable to all varieties registered under the Act it may be possible to interpret that both farmers' variety and extant variety are also attracted by these provision. This anomaly also needs to be rectified by confining these provisions to the newly bred varieties. Protection of the Interest of Farmers and Local Communities

One of the important objectives of this sui generis law is to protect the interest of traditional farming communities and farmers. To achieve this a separate chapter entitled Farmers' Rights is included in the Bill. The provision for registration of new variety developed by farmers, registration of farmers' variety, recognition of rights of farmers, benefit sharing, paying compensation to communities for their contributions, immunity from prosecution in case of innocent infringement, payment of annual fee by the breeders and the creation of a Gene Fund are the special provisions included in the Bill. But the following analysis will make it clear that these provisions are not going to be effective and protect the interest of the farmers and the local communities.

It is expressly provided that the farmer who bred or developed a new variety is entitled for registration and protection in like manner as a breeder of a new variety[79]. To facilitate this the definition of the term breeder expressly included a farmer or group of farmers[80]. The term farmer is also defined to include persons who actually cultivate crops as well as persons cultivating land through other persons. A person who conserves, preserves severally or jointly with any person any wild species or traditional varieties or add value to it through selection and identification of their useful properties are also treated as farmers[81]. One of the intentions of this provision appears to be to reward the value addition by the traditional communities and farmers. But there is no special provision to protect their value addition. The only way to get protection under the law is by registration of the new variety satisfying the criteria of novelty, distinctiveness, stability and uniformity that too by the written description of the new variety. The norms are based on the modem scientific methods of breeding rather than traditional one. The conditions could be satisfied only if one does laboratory based research. This may not be possible for farmers since they are not doing any scientific laboratory research to add value to the wild or traditional varieties.

The right of the farmer also include the right to register a farmers' variety[82]. We have already seen the implications of this. It is expressly provided that the breeder of an essentially derived variety derived from the farmers' variety must take the consent from the farmer or group of farmers or community of farmers who have made contribution in the preservation or development of such variety for the purpose of enjoying the breeders right in the essentially derived variety[83]. It implies that the farmers can include terms and conditions while granting consent at least in cases of essentially derived variety from their traditional varieties. But it seems that this interpretation would conflict with the provisions of benefit sharing, compensation etc.

The Bill also provides the farmer the right to save, use, sow, re-sow, exchange, share or sell his farm produce including seeds of a variety protected under the Act the same manner as he was entitled before the commencement of this Act[84]. The only restriction is that the farmer is not entitled to sell branded seeds of a protected variety[85]. It is further made clear that branded seed means any seed put in a package or any other container and labeled in a manner to indicate that such seed  is a protected variety [86]. It is only limited rights on their farm products produced using the protected varieties that are protected under this provision. In many cases the rights are going to be of little use when it is looked from the angle of reusing the farm produces as seed. Products of many new varieties many not be capable of being used as seed without further processing. The new techniques in biotechnology are going to make the farmer go back every time to the breeder if he wants the same result from the seeds. There is no need for an express right to dispose the farm produce since it is implied in the purchase of seed for cultivation. This is so even in case of products based on inventions protected under the Patent Law.

According to the Bill the farmer also has a right to be informed about the performance of the protected variety when it is sold to him and he is entitled to claim compensation from the breeder in case of failure. It is the Authority who is authorized to determine the compensation after hearing the parties[87]. Similarly there is also a provision to protect the farmer from infringement actions in case the infringement by the farmer is an innocent one[88].

Another method adopted to protect the interest of the traditional community is by facilitating benefit sharing[89]. As per the proposals in the Bill, after granting certificate of registration for a new variety, the Authority must notify the details of the protected variety and invite the claims for benefit sharing[90]. Only after such invitation interested persons can submit application for benefit sharing[91]. The application must be in the prescribed form with fee and can be filed by any person, or group, including non-governmental organizations[92]. The Authority must notify the claim to the breeder and give him an opportunity to be heard before disposing the' claim[93]. While accepting the claim Authority must state the amount of the benefit sharing. In fixing the same the Authority must take note of the extant and nature of the use of genetic materials of the claimant in the development of the variety and the commercial utility and demand of the variety in the market[94]. The breeder must deposit the amount in the Gene Fund. In case of failure to deposit, the District Magistrate within whose local limits the breeder resides can recover the amount as arrears of land revenue[95]. It appears that these provisions will face many difficulties in implementation. The section presupposes the members of the local community to be vigilant and make application to the Authority for claim of benefit sharing. Given the social, economic and educational conditions of the local traditional communities this is not going to happen in many cases. The head office of the Authority is going to be in one of the major cities positively in Delhi. The branch offices envisaged in the Bill are not likely to be located in every District or even in every State. There is going to be a few regional offices in the major cities[96]. It may not be possible for the local communities to approach them. The law presupposes that the NGO's will take care of this responsibility. Though there is a responsibility on the breeder who used the genetic material to disclose in the application form for registration of the new varieties the details regarding the place, community etc. from where the materials are collected, there is no obligation to show that the prior informed consent of the community is obtained for the use of the materials and their traditional knowledge. The obligation is only to show that consent is obtained lawfully to use the materials[97]. This is unfortunate. As per the Convention on Biological Diversity it is mandatory that prior informed consent must be taken from the local community before using their genetic material and the knowledge based on this material. The benefit sharing of such genetic material or knowledge based on the material must also be based on mutually agreed terms and conditions[98]. Based on this, the Bill must contain a provision that the prior informed consent with appropriate terms and conditions of the community must be taken before using the genetic materials and the knowledge[99]. This will enable the Authority to decide the benefit sharing and enforce the same even without a formal claim by persons.

Apart from this the individuals may not show much interest in making a claim since the amount of benefit sharing is not directly given to them. In most cases it would be the communities in the locality from where the genetic material is collected who would be entitled to the sharing of benefits. The amount would be deposited in the Gene Fund and later transferred to the claimants[100]. The claimants are also left with no other option when the genetic materials are used since no right over the genetic materials are recognized under the law. The provision for registration of the farmers' variety as suggested by the Joint Committee is not going to make much sense in this regard. The only option is to claim money. Even for that they have to prove that it is their genetic materials and knowledge that was used. This is to put the custodian of genetic material and the knowledge based on it at the mercy of the exploiter of the material. This provision must be changed and the responsibility must be put on the breeder to establish that he has not used the knowledge. This provision also conflicts with the benefit sharing provisions of the proposed Bio-Diversity Bill, 2000 now pending before Parliament in case of foreign breeders using Indian materials[101].

In case of failure to pay the amount the law envisages recovery as areas of land revenue. Similarly the community will not be in a position to do any thing if the breeder is a foreigner and has no place of residence in India. Even in cases where the breeder is in India his place of business is not going to be in the locality of the community. The law anticipates the community to chase the breeder where ever he is located and take action. It is not viable in the Indian conditions. This provision is not going to help the farmers to recover his share of benefit. The better option would be to include an express provision in such cases to revoke the registration of the new variety rather than leaving it to the District Magistrate for recovery. This will be more effective since the breeder will be worried about loosing his property rights. The provisions as envisaged are more in favor of the breeder than of the local and village communities.

Another provision envisaged in the Bill is to impose a fee on the basis of the royalty or benefit gained by the breeder to be paid annually by every breeder of a variety registered under the Act to retain registration[102]. This is to be imposed by the Authority with the prior approval of Central Government. Failure to pay the fee will enable the Authority to forfeit the benefits of registration [103]. This money must also be credited to the Gene Fund [104]. The arrears of fee if any shall be deemed to be the arrears of land revenue and shall be recoverable accordingly[105]. But it is interesting to note that the authority responsible for recovery is not specifically mentioned. At least there is a provision for cancellation of the registration in case of failure to pay the fee. One must suspect whether this is going to work. The breeder has to pay renewal fee for keeping the registration[106]. In addition to this he has to pay the fees. These are going to be burdensome for the breeders.

There is also a provision for compensating the village or local community for their contribution in the evolution of any variety[107]. For this the Bill envisages the creation of centres by the Authority with the prior approval of the Central Government. Interested persons on behalf of any village or local community shall apply to the Central Government for staking claim for compensation for the contribution of the people of that village or local community in the evolution of any variety[108] . The center after being satisfied that the village or local community has contributed significantly to the evolution of the variety which has been registered under the Act shall make a report to the Authority to this effect[109].  The Authority after giving notice to the breeder who registered the variety and hearing him order the grant of a sum of money as compensation. The sum may be subject to the limitations notified by the Central Government[110]. The compensation is given to the person who approaches the Authority. The breeder must deposit the compensation amount thus determined in the Gene Fund[111]. The money will be then given to the claimants[112]. The arrears may be recoverable as arrears of land revenue by the Authority[113]. It is interesting to note that here the recovery is entrusted to the Authority under the Bill. It seems not possible since they are not conferred with the powers of the District Magistrate to recover arrears of land revenue. The law also envisages introducing schemes by the Central Government for effective enforcement of the provisions relating to benefit sharing and compensation to community[114].   This include scheme for registration of claims for compensation, processing of claims, maintenance of records, distribution of the money etc.[115].

This provision also seems to create problems. There seems to be an overlap between benefit sharing and compensation to the village and local communities. If benefit sharing is for the use of genetic material[116], the compensation is for the contribution to the evolution of the variety[117]. It is the knowledge about the quality, utility etc. of the variety that made the breeder to use the same for developing a new variety. This information is normally evolved by the constant use of the genetic material over a period of time by the community. This seems to impose responsibility on the breeder to pay twice for the use of genetic materials. It must also to be remembered that in case of foreign persons who are using genetic materials, the Biodiversity Bill, 2000 mandate benefit sharing. It is also to be noted that the persons who can approach for the benefit sharing and compensation are the same. For benefit sharing they will approach the Authority directly and for compensation they have to approach the Authority through the center. The Authority will take final decision in both cases. There is no provision to ensure avoidance of double payment of both benefit sharing and compensation. This will lead to unnecessary litigations and hardships. In both the cases the money must be deposited to the Gene Fund and must be paid to the claimant. It is impossible to think how money can be paid to an individual if the compensation or benefit sharing is for a community. The law has not made it clear that the NGO's or group of persons who can also make a claim must have the authorization of the village or local community for doing so. Nor does the law obligate that the money must be spent for the community. It appears that the schemes that are to be formulated through the provisions in the law are supposed to take care of the situation. This does not seem to be viable. There are bound to be conflicting claims. There is no provision to solve this as well. It appears that the whole scheme of law is impossible to implement and will remain in the paper. The attempt of the law seems to encourage investment particularly foreign in plant breeding at the expense of the farming community.

The Bill envisages the creation of a National Gene Fund by the Central Government by way of benefit sharing, payment of annual fee, compensation and contribution from any national and international organizations[118]. The money from the Fund is to be utilized for payment of benefit sharing, compensation, expenditure for supporting the conservation and sustainable use of genetic resources including in-situ and ex-situ collection and expenditure for the schemes for community compensation[119]. The section is silent as to who is in charge of the Fund and how is it operated. The law leaves many things to be achieved through Rules made under the Act. This will create many problems in the utilization of the money deposited in the Fund particularly for the poor claimants of benefit sharing and compensation spread over the length and breath of mother India. The approach seems to be highly centralized to suit the needs of the breeders. Only a decentralized benefit sharing policy and law will help the real custodians of the traditional knowledge and genetic materials. Infringement and Remedies

The infringement of the rights is specifically defined in the Bill. It is the act of selling, exporting, importing and producing the registered variety without valid permission that constitute infringement.  It seems that the right of marketing and distribution are not included in this section[120]. In addition to this the use of the denomination identical with or deceptively similar to the denomination given to the registered variety for selling, exporting, importing or producing any other variety is also treated as infringement. Here also marketing and distribution are left out. If these two are different from selling, a person who markets or distributes without permission will not constitute infringement. The civil remedies by way of injunction, damages or share of profit are available only for acts that constitute infringement[121] The Bill has not provided for any remedies in criminal law for the violation of the rights. Punishments are however prescribed for the use of denomination of the variety without permission[122]. These include punishment for falsely applying denomination to a variety and indicating false particulars relating to the variety.  The punishment is imprisonment for a minimum of 3 months which may extend to two years and a fine of not less than fifty thousand rupees (about US $ 1000) which may extent to half a million rupees (about US $ 11,000)[123]. Even selling, exposing for sale, offering for sale of a variety with false denomination is applied is made punishable with imprisonment for a minimum of six months which may extend to two years and a fine of not less than 50,000 rupees (about US $ 1000) which may extent to half a million rupees (about US $ 11,000)[124]. It is interesting to note that no power is given to the Court to reduce the punishment in appropriate cases below the minimum. This seems to be against the existing norms relating to sentencing. This calls for change. The burden of proof that the offence is committed without mental element is on the accused[125]. Person who is on employment and has committed the prohibited act is also exempted from criminal liability if he could establish that he acted innocently[126]. Corporations which violate the provisions are also made criminally responsible[127].

Conclusion

Analysis of various provisions of the Bill reflects the efforts made to provide an "effective" sui generis law to protect the interest of the modem breeders. The substantive provisions regarding protection of the modem breeder such as coverage of variety protected, criteria for protection, rights of the breeder, procure for protection etc., are substantially based on the provisions of UPOV, 1991. It is needless to re-emphasise that protection based on UPOV in effect is as good as providing patent protection for plant varieties based on patent law[128]. The trend in the developed countries like US and EU are to bring plant varieties under the patent law since the then existing fine distinction between plant, micro-organism, plant varieties etc., are increasingly getting blurred owing to the developments in biotechnology[129]. It appears that only because of the existence of separate legislation for the protection plant varieties in these jurisdictions that prevent the patent law being pressed into service to the full extent. This historical process is going to be reversed when Article 27(3) of the TRIPS is subjected to review in the days to come. The Indian law makers must anticipate this development in law and technology and tailor their laws to avoid the repetition of the historical process of plant varieties protection in India which is not going to suit her interest in the changed context.

The provisions of the proposed Bill are a clear reflection of the same. It is demonstrated clearly that it may not be possible to achieve the objectives of protecting the interest of the breeders and custodian of the genetic materials together in a meaningful way in an "effective" sui generis law. The reasons are obviously the conflicting jurisprudential basis - private property in one case and collective management and enjoyment in the other- for the protection of these interests. The UPOV framework is based on private property jurisprudence and primarily intended to suit the needs of global seed industries. Any attempt to stitch the needs of the custodians of genetic materials in the UPOV framework is not going to yield the desired results. If the intention is to promote private investment, that too foreign, in plant breeding through the incentive of granting intellectual property rights, whether it is going to deliver goods for India or not, the best legal frame work in the context of biotechnological revolution and globalization is the patent law. It is true that there are serious doubts whether India will get her due share in the WTO-TRIPS context[130]. But the proposed sui generis law has not demonstrated that her position will be better when compared to patent law. On the contrary it is clear that the Bill is more effective than the patent law in many respects. One should not also forget the changes that are going to be introduced in the Patent Act, 1970 through the amendments pending before Parliament to satisfy the TRIPS mandate[131]. It appears that adding plant varieties in the Patent Bill will be more beneficial to India than the so called sui generis law as envisaged to safeguard the interest of breeders. This can be easily achieved more effectively by deleting the terms "seeds varieties and species" in clause 4(e)(j) of the Patent (Second Amendment) Bill, 1999[132]. This will save India at least the troubles of creating new authorities and making them efficient.

It is clear from the analysis of the Bill that the special provisions included to protect the interests of the farmers are not going to be effective. India has a genuine concern for the protection of the interests of the local communities who are the custodians of the genetic materials and the traditional knowledge. The best possible approach is to have a separate legislation for affording protection to this segment of the society. This law must protect and preserve the valuable traditional knowledge of India available in the public domain from being commercially exploited without authorization.

Using the principles of collective management, the exclusive right to manage traditional knowledge shall be primarily with the representatives of the local and village communities along with representatives of the people, government, experts, etc., in the form of trusts. Considering the diverse nature of the traditional knowledge and the fact that a lot of knowledge had lost its community identity, the right of management must be decentralized and vested with traditional knowledge trusts and different levels - from community trust to national trust. Given the social, economic and educational background of the communities the managing committees of the trusts must be constituted in such a manner so that it will have continuity and have the benefit of the involvement of the people from outside the community. This is to assist them in the         management of the knowledge particularly on giving prior informed consent and determining the terms and conditions thereof to use the traditional knowledge or new products based on traditional knowledge for commercial exploitation. The diverse cultural background of the Indian communities warrants flexibility regarding the norms for the self-management of the trusts. The law must also have provisions obligating the local communities to preserve the traditional knowledge and use the same for the social and economic growth by starting appropriate institutions/industries in collaboration with others. This will facilitate the interaction of traditional knowledge with the modem technological developments like biotechnology so that the new knowledge developed can be adopted and used by the communities for their social and economic development. For quick and less expensive dispute resolution, dispute settlement committees with in the trusts should be created with an appeal to an independent Tribunal/Board and then to the Supreme Court. Considering the fact that there is already substantial use of traditional knowledge by industries, provisions must be included to safeguard the business interest of the persons already in use of traditional knowledge. Remedies both in Civil and Criminal law must be employed to prevent unauthorized use of traditional knowledge for commercial exploitation. A sui generis law following the above principles seems to be the solution for effectively protecting the interests of the farming communities.