This Blog is inscribed by Satyam Shresth.
Genetic information of plant and animal constitution are of great economic significance, they help in building new plant varieties, making drugs in pharmaceutical industries and thus are a form of public good.
Wild plant has three types of uses-
- The wild plants are source of natural compounds and can be used directly or be used for making drugs.
- Natural chemicals found can provide information for developing synthetic chemicals and compounds.
- Thirdly the wild varieties may act as gene pool.
The modern biotechnology has attained the ability to form new species with the traits which were not possible in the natural course with the use of the available genetic resources and thus the importance of plant genetic resource has grown over the years.
Further the existence of a diverse crops and species ensures a certain degree of stability to the farmers who can resort to the other species if one of them fails to deliver the desired harvest.
Agriculture sector is one of the major contributors of the GDP and is the backbone of the country’s economy. One of the major reasons for the dismal agricultural performance of the developing countries is lack of innovation and development in the traditional plant varieties. Thus, the intellectual property protection granted to the new plant varieties developed is crucial for the development and investment in research of new plant variety.
The available plant genetic resource needs to be protected from possible erosion due to various factors such as possible loss of natural habitat and this protection can be provided by in situ protection where the protection is provided in the natural habitat of the plant and ex situ protection can be provided in artificial environment such as seed bank and living collection.
Thus, the article tries to analyse how the protection is provided to plant genetic resource and plant varieties and such genetic resources and varieties can act as a tool for the farmers.
The first convention relating to plant variety was Paris Convention For Protection of Industrial Property where it was stated that that industrial property should be interpreted in widest sense and would include agricultural industries.
The French by a decree of 1922 established the protection for newly bred plant varieties and a system for seed certification was established by Netherlands in the year 1932. In 1957 the French government issued invitation to 12 countries for a conference for establishment of a system for plant variety protection.
The second session of the conference which was held in Paris in the year 1961 which led to the incorporation of UPOV convention, the article 4(1) of the above stated convention states that it shall apply to all the botanical genera and species. The first review of the convention was held in the year 1972.
The further addition to the UPOV convention was held in the year 1991. The amended convention required the states to protect at least 15 plant genera on joining the convention and then the protection should be extended to all the plant varieties.
Further the TRIPS agreement provides that the member states shall provide the protection to the plant varieties either by the means of the sui generis legislation or the patents act.
With respect to the plant genetic resource, in the year 1983 the FAO established a commission on conservation of plant genetic resource, which was the first intergovernmental treaty for the conservation and development of germ plasm. Further the resolution adopted in the year 1989 introduced the concept of Farmer’s Rights which are the rights arising from past, present, and future work of farmers in conserving, improving, and making available the plant of plant genetic resource.
Further in the year 1992 the Rio Di Janeiro Earth summit was held where the convention of biological diversity was adopted, one of the aims of the Rio Di Janeiro Earth summit equitable sharing of the benefits arising out of the utilisation of the genetic resources. Article 16 of the CBD states that the member states must see to it that the access and transfer of technologies which make use of the genetic resources must be made available to other contracting parties. Further Article 19 of the convention provides that there should be equitable sharing of the benefits with the country providing for the genetic resource with special emphasis to developing countries.
In the year 2001 after the deliberations of the FAO commissions on genetic resource and its subsidiary bodies the Treaty on Plant Genetic Resource for Food and Agriculture was passed. The main objective of the convention is conservation of plant genetic resources which are of value to the agriculture industry, to provide equitable awards to the farmers for their contribution to preserving, making, and improving the plant genetic resource, lastly the treaty also envisages the creation of a multilateral system where there is free exchange of genetic resources between the countries.
Plant Genetic Resource
Plant genetic resources are defined as genetic material of plants which are of actual or potential value. Further the Food and Agriculture organisation (FAO) defines the genetic resources as inclusive of all the generative and vegetative reproductive material of the plant with some economic of social significance with respect to the agriculture sector.
The genetic resources are indispensable to the agricultural industry and the genetic resource must be conserved for the growth of the agricultural industry. The development of the agricultural industry rests on the replacement of ancient plant variety with a more improved variety.
There are two objectives with which the plant genetic resource conservation works-
- The production of more improved crop genetic resource
- The preservation of genetic resource for all the nations.
Genetic erosion- It is defined as loss of genetic information from the population. Thus, there should be loss of heterogeneity of genetic information is genetic erosion. The genetic erosion can occur due to various factors, some of them are-
- The new introduction of crops which result in replacement of traditional varieties.
- Disease which wipes out the indigenous crops and leads to loss of traditional genetic resource.
Conservation of Genetic Resource
The fundamental objective of genetic resource conservation is maintenance of genetic diversity within the species of the known or potential value whether to the present generation or to a future generation.
There are two methods of conservation of genetic resources-
- In Situ Conservation- In Situ conservation means setting aside the natural reserve in which the species is allowed to remain in their ecosystem. This allows the traits of the species to develop in its natural environment and serves as an important means of conservation of endangered species. There are some difficulties in the in-situ form of genetic conservation such as cost involved, maintenance of the habitat and there is also a probability of genetic wipe out due to occurring of some natural disaster.
- Ex Situ Conservation- In ex-situ conservation the genetic resource is conserved in a habitant which is distant from the natural habitat of that genotype. This type of conservation includes conservation in botanical garden or storage of the seeds in the gene bank where the seed is preserved in the controlled environment.
The ex-situ and in situ methods of conservation are not contradictory but are rather complementary of each other and both can be resorted to for the conservation.
Farmers and Plant Genetic Resource
Many of the farmers survive in the fringes of the geography and surviving on the single plant genetic variety can have disastrous impact on their survival hence there is need for variety of plant generic resource.
Diversity in the crops ensures stability for the farmers as if one of the varieties fails to produce desired result then the other can be resorted to. Where there is a demand of specialized genetic crop them the farmer can grow that crop and take the advantage of added incentive. The farmers can also manage the labour by growing that genetic type of crop which is suitable for the labour which is available to the farmer.
Farmers Affect The Plant Genetic Resource By The Following Means:
- Varietal Choice– It refers to the proportion in which the different varieties are planted by the farmers and these choices of the farmers have an effect on the genetic resource. The choices are made by the farmer by taking into account cost of growing, higher yield, drought, and flood resistance etc.
- Varietal Management and Recombination– The varietal management done by the farmers have an effect on the genetic resources. With crossing of different species new genetic material crops can be produced. Sometimes wild varieties are introduced to the farming verities to give the crop some traits of the wild varieties. Thus, the varietal management and recombination done by the farmers can have impact on the genetic resources available.
- Seed Selection– One of the activities of the farmer which has the highest impact on the genetic resource is seed selection, the farmers usually evaluate the performance of the seeds and then select the seed which will have better performance.
- Storage– The farmers store the seeds which is instrumental in further propagation. Thus, the type of seed stored has the impact on the genetic resource. Usually, the seed which is resilient to disease and pest attack are stored.
Farmer’s rights according to International Treaty on Plant Genetic Resources for Food and Agriculture, there are two methods of providing farmer’s rights-
- The ownership approach is the right of the farmer to be rewarded on an individual or collective for the genetic resource material by the farmer and which is used for the commercial purpose or has been used to obtain the intellectual property rights. Such an award system is deemed to be necessary for the enablement of equitable sharing of resources. Some of the means of providing incentive to the farmer’s are access and benefit sharing legislation and farmer’s IPR rights.
- The stewardship approach means that the incentive should be provided to the farmer’s collectively so that they can act as steward of the innovation in improvement of the genetic resource. Thus, the main goal of the stewardship approach is to provide legal space to the farmers so that they can continue the innovation in the genetic resources.
Equitable sharing of benefit can be achieved by many ways, under the ownership approach it can be achieved by making a legal system in which the benefit is shared directly between buyer and seller of genetic material and in such transaction the prior informed consent should be present. On the other hand, the stewardship approach maintains that it would be very difficult to identify the real owner of the genetic resource and so the benefit should be shared with all the community at large who are the owner of the genetic resource, this was the approach adopted by the Food and Agriculture Organisation (FAO).
Further there should be participation of the famers in the decision-making process.
For the farmers to be able to continue to breed and make new varieties the farmers should have a right to use, sell and exchange genetic materials.
The Protection to Plant Varieties and Farmers Rights Act, 2001 whose objective is meant to establish a system for protection of plant varieties and to gibe rights to farmers and breeders to encourage further development of plant genetic resources.
The act gives to the farmers following rights, right to seeds, right to register farmer’s varieties, right to get the benefit arising out of the use of the farmer variety, right to reimbursement for the loss occurred due to use of commercial variety. The right to farmers to get the variety traditionally cultivated and evolved by them is a farmer’s right.
The term plant variety was introduced in International Union for protection of New Plant Varieties (UPOV) convention. Plant variety means a plant grouping within a single botanical taxon of lowest known rank, which discernible in one or more characteristics from the known variety.
New varieties are afforded legal protection to encourage plant breeder to invest their resources in development and improvement of plant varieties. The protection granted to the plant varieties also help in development of new plant varieties which is helpful to the society as a whole.
Food and Agricultural Organisation resolution defines the farmer’s right as rights which arise from the past, present and future acts of the farmers towards conserving, improving, and making available the plant genetic resources.
There Are Various Approaches To Providing Farmer’s Rights:
- The traditional practices of the farmers can be made an exception to the right of intellectual property granted to the breeders.
- The farmers may themselves be permitted to claim exclusive rights in the plant varieties cultivated by them.
- A legislation can be made for compensation to the farmers for their contribution to the plant variety diversity.
Under The UPOV Convention A Plant Variety Can Be Protected If It Is-
- Novel- The variety for which the protection is claimed must not have been sold or used previously.
- Distinctiveness- The new variety must be clearly distinguishable in one or more of the characteristics from the known variety.
- Homogeneity- The new plant variety must be sufficiently homogenous with regards to characteristics and show as least variation as possible so that accurate description of the variety can be provided.
- Stability- The essential characteristics of the new variety should have sufficient uniformity over the various cycles of reproduction.
The act allows the farmers to use the seeds for non commercial purposes without the prior authorization of the breeder. In some countries this right also extends to allowing the farmers to sell the varieties. Further the 1991 UPOV convention states that national law should permit the farmers to use for propagating purpose on their own land the protected variety.
Further under the TRIPS agreement the farmers have been allowed to save and use the seeds of the protected variety on their own land without the prior approval of the patent holder.
Under the Protection of plant varieties and Farmer’s Rights Act, 2001 the farmers can spare, use, sow, trade and sell the produce obtained by planting of protected variety. A farmer have been given the right of blameless encroachment when at the time of such encroachment on the right of the breeder the farmer is not aware of such right.
Further under the act the act the farmer who is invested in protection of hereditary assets of land races and wild varieties and their improvement shall be recognized and be awarded from the gene fund.
The genetic resources are important for maintaining the gene diversity which in turns help in giving choices to the farmers and help in development of new gene variety which will help in increasing the productivity of the farmers, on a similar pattern the protection granted to the plant varieties also help in getting investment for the improvement and development of new plant varieties, which in turn helps the farmer by increasing their productivity. The farmers have been bestowed with several rights such as use of seeds, equitable sharing of benefits arising from the use of the variety to which the farmer claims to be the owner. The first hypothesis stands true as the conservation of genetic resource is beneficial to the farmers. The second hypothesis stands proved as the protection given to the plant varieties in the form of intellectual property are beneficial for the betterment of the farmers and lastly the third hypothesis also stands proved as there are in existence the rights for the farmers with respect to genetic resources and plant varieties.