IPR in Indian Agriculture & Price Control in context of BT cotton
Indian agriculture is one of the most diversified agriculture in the world supporting the huge population of 1.27 billion culturally diversified populations living in the country. The most important achievement of Indian Agriculture is Green Revolution which fed the country from 1960s up till now. Mostly staple cereal crops, particularly wheat and Rice, were targeted by the Green revolution. There has been a revolution in agriculture science over the years and a clear movement toward the biotechnological approaches in agriculture. This has resulted in the introduction of first GM crop in our country i.e., Bt Cotton.
Cotton is the major commercial crop in about 10 major states of India providing income source to around 50 lakh farmers. The crop also provides employment to more than 2 crore laborers during the harvesting season. Ever since Bt cotton technology was released in India, there has been complaints by the farmers on the high prices of seeds which were primarily due to the high trait value fixed by Monsanto.
Price fixation enactment
There are price fixation enactments in certain states like Andhra Pradesh, Telangana and Maharashtra empowering the State Governments to regulate the prices of Bt cotton seeds taking into consideration cost of production, trait value etc. In other states like Madhya Pradesh, Tamil Nadu and Karnataka Bt cotton seeds are sold at similar prices. However, the prices remained higher in the Northern States like Punjab, Haryana and Rajasthan. Due to all these factors, the prices were not the same across the country.
Bt cotton seed cost remained high due to the high trait fee, Interestingly Monsanto never had a patent for its first technology (BG I) in India, even then it has collected technology fee (trait value) much more than what was considered by the State Governments in price fixation. There is a huge gap between the trait value amount considered by State Governments and what is actually charged by the technology provider through its agreements.
Monsanto’s propaganda
Monsanto has created false propaganda in the media as well as among the various regulatory authorities that the patents they have, give them IP rights on seeds and plant varieties for the past 15 years. By using such false propaganda Monsanto induced the seed companies to enter into a contract which they call a “technology license agreement”. In fact, the patented technologies are not used by the licensee seed companies. Only a few grams of seeds of a transgenic variety are provided as donor variety for the Bt cotton trait.
Price control order
Farmer organizations, NSAI and Seed companies have made representations to the Agriculture Ministry. Government of India, after giving serious consideration to the whole issue and after obtaining opinion from legal luminaries, came to conclusion that this problem can be addressed by promulgating price control order under the provisions of the Essential Commodities Act, 1955. Therefore, with the objective of making available all types of cotton seeds including Bt cotton seeds, Government of India issued “The Cotton Seeds Price (Control) Order, 2015” (CSPCO) under section 3 of the Essential Commodities Act, 1955 with provision to regulate the royalty and the seed prices uniformly across the country. This action has benefited an estimated 5 million cotton farmers in about 10 major cotton growing states of the country.
In India, Monsanto obtained patents for cotton transformation and event identification based on their patents of the US under PCT. However, it can be noted that the claims granted to them by the Indian patent office does not cover any IP rights to Monsanto on seeds and plant varieties as specifically prohibited under Section 3(j) of Patent Act, 1970. The IPR for seeds and plant varieties are covered by a sui generis enactment known as Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001. Therefore, the subject of Bt cotton seeds is entirely covered only under this enactment.
WTO membership obligation
India is member country of World Trade Organization (WTO), and therefore under an obligation to provide optimum IP protection. In 1994, India became signatory to the TRIPs. Article 27 (b) of TRIPs Agreement provides:
Plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
In the context of Agriculture and related activities, India enacted a sui generis IPR law viz., the Protection of Plant Varieties & Farmers’ Rights Act, 2001 to grant intellectual property rights to the breeders of plant varieties including farmers. Farmers also have rights to use and market without branding their farm produced seeds of the protected plant variety.
Balanced provisions
The provisions of the PPVFR Act are balanced taking care of the interest of the trait developers, breeders, seed companies and the farmers. The trait developer can make claims and justify such claims so that the Authority can fix appropriate trait value. However, Monsanto appears to believe that they can write their own laws and fix the trait value as they feel appropriate without getting regulated by any statutory authority. India is practicing market economics and sectors which involve billions of dollars of investments in Insurance, Banking, Ports, Airports, Power generation and distribution, Petroleum development etc are all regulated by statutory regulators. PPVFR Authority is one such regulator which is created by the Government for encouraging the development of new varieties and plants and to protect the rights of the farmers and the breeders.
Note: NSAI views are based on the law and also considering the interest of all the stakeholders including Monsanto.
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