THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS ACT 2001 – INDIA

1. THE PROTECTION OF PLANT VARITIES AND FARMERS’ RIGHTS ACT 2001 – INDIA • Objectives: • - Protection of the rights of farmers for their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties. • - Protection of Plant Breeders Rights to stimulate investment for research and development, both in the public and private sector for development of new plant varieties. • Giving effect to Article 27.3(b)of the TRIPs Agreement.

2. Coverage of varieties : • New Varieties (genera and species which can be registered will be notified subsequently) • - Extant varieties • - Farmers varieties • - Breeders can exercise their rights over any variety that is essentially derived from the protected variety. Provided that the authorisation by the breeder of the initial variety to the breeder of edv is on mutually agreed upon terms and conditions.

3. Essentially derived variety is defined as : • i) predominantly derived from such initial variety, or from a variety that itself is predominantly derived from such initial variety, while retaining the expression of the essential characteristics that result from the genotype or combination of genotypes of such initial variety. • ii) Is clearly distinguishable from such initial variety; and • iii) Conforms to such initial variety in the expression of the essential characteristics • (Similar to UPOV 91)

4. Conditions for Protection: • A variety is protected if it conforms to the criteria of : • - novelty • - distinctiveness • - uniformity • - stability • (These terms have been clearly defined in the legislation – Section 15) • (Similar to UPOV)

5. Rights of Breeders: • Breeders Rights extend to Seeds and / or Propagating material of the protected variety to : • i) Production • ii) Selling • iii) Marketing • iv) Distribution • v) Export • vi) Import • (Similar to UPOV 91)

6. However, if the breeders’ variety is essentially derived from a farmers’ variety, the breeder cannot give any authorisation without the consent of the farmers or communities from whose varieties the protected variety is derived.

7. Farmers’ Rights : • i) entitled to save, use, sow, re-sow, exchange, share or sell his farm produce including seed in the same manner as he was entitled earlier (Seeds for sale should not be branded)(essentially correspond to Farmers’ privilege in UPOV 78) ii) Full disclosure of the expected performance of the Seeds or planting material by the plant breeder. Where these fail to perform in the manner claimed by the breeder, the farmer may claim compensation from the plant breeder.

8. i) reward the farmer “who is engaged in the conservation and preservation of genetic resources of land races and wild relatives of economic plants and their improvement through selection and presentation”. • (Similar to the concept of Farmers’ Rights in ITPGR)

9. Researchers’ Rights: • Researchers’ Rights are recognised which grant them free and complete access to protected materials for research use in developing new varieties of plants. However, authorisation of the breeder is required “whose repeated use of such variety as parental line is necessary for commercial production of such other newly developed variety”. This provision in effect uses the formulation provided for in UPOV 78 for breeder’s exemption. • ______________________________________________________

10. Benefit Sharing : • i) For a variety registered as EDV, NGOs or individuals can claim a share of benefits that may arise from its commercialisation on behalf of any village or local community; • ii) Any individual or NGO can make a claim on behalf of a village or local community for the contribution that they had made in the evolution of any variety registered under the Act. • (Amount of Compensation as determined by an Authority established under this legislation would be deposited by the breeder in the National Gene Fund)

11. Compulsory Licensing : • Priority attached to the public interest over the interests of commercial breeders; • Granting of compulsory licences to ensure availability of seed /planting materials of the protected variety in reasonable price, if : • i) three years have elapsed since the date of registration; • ii)reasonable requirements of the public for seeds or other propagating material have not been satisfied; • iii)seed/propagating material not available to the public at a reasonable price.

12. The terms and conditions of a Compulsory licence should ensure : • reasonable compensation to the breeder • the licensee provide the farmers the seeds/propagating material in a timely manner and at a reasonable price.

13. Conditions Imposed on Applicants: • Applicant must declare that : • a) variety sought to be protected should not contain terminator gene • b) the genetic material or parental material has been lawfully acquired. Applicant should provide the passport date of the parental lines along with the geographical location in India from whose the genetic material has been taken. • c) Contribution made by farmers, village community, institution or organisation in breeding, evolution or development of a variety and use of genetic material conserved by any tribal or rural families in its breeding.

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