The word ‘open’ has acquired a very specific meaning when it comes to the economy. Opening up in that context implies liberalising and allowing for foreign players – particularly corporate entities, to come and produce or market their products and services in the country. This is also the thrust of the policies of the current Central Government.
The country is slowly reaching a situation where the seed sector is open, but farmers’ seeds may no longer be. They may either legally belong to a farmer or a group of farmers who have chosen to register the plant variety under an intellectual property (IP) law. Small farmers who have otherwise remained staunchly against privatisation of seeds, are now being encouraged to claim IP over their seeds before anyone else can claim exclusive economic rights on them. This pushes farmers down the IPR route, even if to pre-empt their plant varieties from being claimed as someone else’s innovations. Yet, IPR runs counter to informal seed systems.
Two contrasting conceptions of ‘open’ are currently playing out in the seed sector. One that opens, further liberalises the seed industry. The second and more interesting is a civil society initiative to keep them uncovered from any IP rules or (re)open seeds and extract them from IP rules, where they have been so registered.
First, a look at the prevalent seed systems:
Formal – Public scientist/plant breeders/seed researchers and private seed companies.
Informal – Small and marginal farmers, peasant communities, tribal groups, forest dwellers, etc. We will discuss this at length, since our main concern lies here.
The informal seed system of India
The informal seed systems in India have traditionally been ‘open’. Local customary laws in farming communities have kept seed accessible and free for use; in other words, seeds and planting materials have not been closed or blocked for access. Though in them being so ‘open’, seeds have been equally insecure. Farming communities innovate together as they develop crop varieties, relying on each other’s shared seed and planting material and know-how. This is the openness that many in the informal sector want to keep alive. This very basic social phenomenon and local fact needs better legal recognition and policy support.
However, the law and policy environment has been relatively more conducive for the formal seed sector that has undergone a different kind of ‘opening up’. India’s biggest hybrid seed company MAHYCO was set up in 1961. In the 1980s, the Government of India also moved to open up the sector. The 1988 New Policy on Seed Development further liberalised the seed sector, much before the 1991 economic reforms. In the 1990s, global trade rules worked as external pressure to introduce IP rules in the agriculture sector.
Dadaji Ramaji Khobragade is a known farmer-breeder from the Nanded District in Maharashtra. The paddy developed by him is used not only by many farmers, but also by agricultural scientists in the public sector, to develop new varieties. The National Innovation Foundation is also trying to get his varieties commercialised through a private company.
One of his rice varieties – ‘Dadaji HMT’ was granted the PVP certificate in 2012 by the PPV&FR Authority under the farmers’ variety category. But real and meaningful benefits as an innovator are yet to accrue to him. He may have earned quite a name in the farming circles, as well as received awards and recognition from various agencies, but his economic condition is yet to improve.
There are others like Shri Prakash Singh Raghuvanshi, who likewise has his wheat variety – Kudrat 9, registered as a ‘farmer variety’ under the PPV&FR Act. He is content with using the system to simply getting an IP to exclude any seed company from staking a claim on his high yielding variety.
Meanwhile, farming communities that have been growing common varieties across states and regions within the country, find themselves on either side of a PVP. Kalagoda (Registration No. 92 of 2014) is grown by traditional farmers across northern Odisha, south Jharkhand, north Chhattisgarh, being a variety of upland rice popular in the Chota Nagpur Plateau region. However, it has been registered under the name of one particular farmer group from Odisha.
This shows how the IP system on plant varieties is unable to accommodate shared knowledge systems. Granting a plant variety certificate to a group of farmers does not really solve the problems or its spin-offs. In such situations, Section 29 of the PPV&FR Act, 2001, ought to be invoked. It clearly states:
“Notwithstanding anything contained in this Act, no registration of a variety shall be made under this Act in cases where prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment.”
The irony is that many voices were raised against IPR on life forms when patents were being granted on basmati, turmeric and neem by foreign patent offices. But when the same system has begun to grant IPR (in the form of PVP on farmers’ varieties), then there is an eerie silence. Farmers’ groups themselves are in a dilemma on whether to avail of the only so-called ‘protection’ being granted by the state to their varieties through the IPR system, or stay out of it. It is in this context that the idea of ‘open source’ seed was developed.
IP on seed is not something that small and marginal farmers in the country, or in any other country for that matter, asked for. The demand for IPR came from developed countries and the MNCs they foster, through the World Trade Organisation (WTO). India became a member of WTO in 1995. The WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) requires a member-country to provide for patent or patent-like economic rights on all products, including on life forms such as seeds.
This requires governments to legislate for the grant and enforcement of such rights when IP-protected seeds are introduced in the market. The bundle of rights usually associated with IP on seed includes the right to produce, sell, market, export, import and distribute the said variety. These rights are granted for a fixed term, usually up to a maximum of 18 years in case of PVP, and for 20 years under a patent.
Yet, farm-saved seed (FSS) and farmers who want to stay out of the IP system have not got similar policy support. FSS is competition to the seed industry – public sector or private companies. If farmers’ seed systems are not promoted, there are implications for not only small and marginal farmers, but agriculture and societies at large:
Openness with respect to seed takes on a specific meaning in the context of enclosures that IP and other related seed laws create. Seed has been regarded, at least by peasant communities, as a ‘community resource’ carefully bred, conserved and evolved over several thousand years. The formal system is slowly closing in on the informal seed systems as well as closing up for unhindered access.
It is thus interesting that the only law in the country for farmers’ rights is an IPR law – Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001. Shortly after, a national-level PPV&FR Authority was established in New Delhi. The Ministry of Agriculture, Government of India, through the Plant Authority attempts to bring more and more farmers and more farmer-breeders into the fold of the PPV law. About 600 farmers’ varieties have been granted IP under this law since 2007 (out of the total registrations of 2,068 through 2007-2015), when the applications for PVP began to be accepted for processing by the Authority.
Open source seeds
The idea to (re)open seeds, in making them free from restrictive IP rules, draws from two other realities:
The five ‘open’ principles that the OSSI (Open Source Seed Initiative) members adhere to are:
The worries about IPR on seeds
Why is there so much debate around IPR on seeds? There are several reasons for it:
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Shalini Bhutani
Shalini Bhutani is a legal researcher and analyst based in Delhi. She works and publishes on a wide range of issues including how free trade and its rules impact communities and conservation. She was a faculty member at the Centre for Environmental Law, WWF-India, and is now guest faculty on legal and regulatory affairs at various universities. She is the legal counsellor for the Apna Beej network and supports the Indian Alliance for Seed Sovereignty. Previously she has worked with several NGOs, both national (such as Navdanya) and international (GRAIN). She can be contacted at: emailsbhutani@gmail.com
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