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INTELLECTUAL PROPERTY RIGHT AND INDIAN AGRICULTURE : SOME ISSUES
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The Background
There is
massive evidence to support the fact that appropriate legal protection acts as
an incentive for productive research (World Bank, 1990, Strengthening
Protection of Intellectual Property in Developing Countries :
A Survey of Literature, Discussion Paper, Washington, D.C.). The
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IPRs refer to the
legal ownership by a person or business of an invention/discovery attached to
particular product or process which protects the owner against unauthorized
copying or imitation. There are seven types of IPR viz., Copyright,
Trademarks, Geographical Indications, Industrial
designs, Patents, Integrated circuits and Trade secrets. A
patent is a statutory privilege granted by the government to inventors, and
to other persons deriving their rights from the inventor, for a fixed period
of years, to exclude other persons from manufacturing, using or selling a
patented product or from utilizing a patented method or process. At the
expiry of the time for which the privilege is granted, the patented invention
is available to the general public. Source: Business Guide to |
The 1970 Act
was also inadequate in terms of covering processes but not the product patents
in food, medicine, drugs and substances provided by chemical processes. It now
stands amended through a presidential ordinance (
The TRIPs
agreement has introduced profound changes which will influence competitiveness,
generation and diffusion of technological innovations and ultimately the
technological development prospects of developing countries (DCs). The impact of the changes can thus be far reaching,
though at this early stage it is difficult to assess the full implications of
the agreement. An attempt is made here to consider, in preliminary manner, some
possible implications of the new regimes. IPRs
constitute an important element of trade negotiations (UNCTAD, 1991, Trade and
Development Report, New York.). The GATT accord on TRIPs has raised a whole lot
of apprehensions and engaged the attention of intellectuals, politicians,
farmers and media for quite sometime now. The legal dimensions of TRIPs make it
difficult to understand, and vulnerable to a host of misgivings. Table 1
contains an overview of the types of patent protection allowed by countries
organized by the level of income. Some discernable patterns can be identified
in areas relating to limited duration, PBR and exclusions. By and large the low
income and lower-middle income countries do not accord PBR and have shorter
protection periods. Pharmaceuticals and food stuffs are the most commonly
excluded products.
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The sui generis system is a
milder/diluted form of a patent and it provides a framework of plant breeders
rights (PBR) through which protection is accorded to the breeders,
researchers and farmers with regard to use and exchange of seeds and plant
genetic material. Crucially, this framework has two important clauses viz.,
"Farmers' Privilege" and "Researchers' Rights". The (PVP)
legislation will give PBR legal status/statutory rights in the country. Source: Business Guide to |
Table 1
Overview Of Patent Protection Worldwide as of 1995
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Exclusions
from Protection |
||||||||
|
Country |
Duration
of Protection (years) |
PBR |
Pharmaceuticals |
Food
Products |
Chemical
Products |
Plant
& Animal varieties |
Surgical
Procedures |
Microganisms & Products there of |
|
Low Income |
||||||||
|
|
16 |
|
|
|
|
X |
X |
|
|
|
14(20) |
(X) |
X |
X |
X |
|
X |
|
|
|
15 |
|
X |
X |
X |
X |
X |
|
|
|
16 |
|
X |
|
|
|
|
|
|
Sri-Lanka |
15 |
|
|
|
|
X |
X |
|
|
Lower-middle
Income |
||||||||
|
|
14 |
|
|
|
X |
X |
X |
|
|
|
15 |
|
X |
X |
|
|
|
|
|
|
15 |
X |
|
|
|
X |
X |
X |
|
|
17 |
X |
|
|
|
|
|
|
|
|
15 |
|
X |
X |
|
X |
|
|
|
Upper-middle
Income |
||||||||
|
|
5,10,15 |
X |
X |
|
|
|
|
|
|
|
20 |
X |
X |
X |
|
|
X |
X |
|
|
15 |
X |
|
X |
|
|
|
X |
|
|
15 |
X |
X |
|
X |
|
|
|
|
|
5,10,15,20 |
|
X |
|
|
|
|
|
|
High
Income |
||||||||
|
|
16 |
X |
|
|
|
|
|
|
|
|
20 |
X |
|
|
|
X |
X |
|
|
|
17 |
X |
|
|
|
|
|
|
|
|
20 |
X |
|
|
|
X |
X |
|
|
|
15 |
X |
|
|
|
|
X |
|
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Source:
WIPO
(1995) :Nations Ranked according to World Bank
National Income Data. |
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Note : With respect to |
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Myth and Reality
The debate of
the implications of TRIPs began with reference to pharmaceuticals and
chemicals. Subsequently, myriad of views has been expressed regarding the
possible impact of TRIPs accord on Indian Agriculture.
Issues relating
to germplasm and biotechnology are substantial and
valid, but these are best pursued independently of the PBR debate. PBR is not a
panacea, but can serve the farmers by increasing their access to improved seeds
at reasonable prices by augmenting the efforts of public systems through
private seed firms (Lesser, W., 1991. Equitable Patent Protection in the
Developing World: Issues and Approaches, Eubios
Ethics Institute, Chirstchurch, New Zealand.).
Task Ahead
The TRIPs
agreement would require substantial changes in the patents regime of our
country. Most developed countries, as they are members of the UPOV convention,
accord protection to plant varieties. By contrast, only a handful of DCs have sui generis
protection systems ( e.g., Argentina, Chile, Kenya, the Republic of Korea,
Uruguay and Zimbabwe). The PVP legislation proposed to be enacted is modelled (News analysis, Economic Times, February 12 and
15, 1995.) on the basis of the International Union for the Protection of New
Varieties of Plants (UPOV) guidelines (World Trade Organization, 1995,
Environment and TRIPs; Committee on Trade and Environment Paper, Geneva,
Switzerland.) (Box 3, "JPOV 1978 version allowed for the rights of plant
breeders and farmers, whereas UPOV 1991 is more stringent in the sense that it
disallows both. There is general consensus that we opt for UPOV 1978 and this
option is available only till the UPOV 1991 is ratified by at least five member
countries. But the just concluded fourth International Conference on Plant
Genetic Resources, at Leipzig (Germany), has vindicated the stance of the DCs ( FAO, 1996, Global Plan of Action for the Conservation
and Sustainable Utilization of Plant Genetic Resources for Food and
Agriculture, Final Draft, International Conference on Plant Genetic Resources,
Leipzig, Germany.). It succeeded in getting a global endorsement for farmers
rights, paving way for the member countries to enact PVP legislation in ways
that best serve their respective national interests. The "World
Intellectual Property Organization (WIPO) model law for developing countries on
inventions" can serve as a general outline for the proposed law on PVP.
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Apprehensions* |
Realities** |
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·
Seeds and genetic material have to be patented |
Patenting of seeds
optional. Genetic material ( like wild varieties, purified varieties,
species/genera etc.) not under the purview of IPR regime |
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·
Loss of farmers right to use and exchange seeds |
Farmers'
right to use and exchange seeds ensured. |
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·
Monopolization and exploitation by seed Trans National
Companies (TNCs) |
Can be
checked if the oligopolistic market structure of
the seed sector is retained with the public institutions playing a major
role. |
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·
Exploitation of genetic resources/ bio-diversity of the DCs by the Developed Market Economies (DMEs). |
Possible in
the short term. Can be reversed in the long term by trading - off the genetic
resources of the DCs for the biotechnological
skills of the DMEs. |
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·
Cost of patenting beyond the reach of DCs |
Initially
yes, but in the long run the economic benefits accruing to the DCs from stronger IPR would be substantial. |
*
(a) Gill, K.S., 1991. "GATT Issues-Agriculture Sector, Implications of
Intellectual Property Rights for India" Monthly Commentary,Dec.
:48-53.
(b) Shiva, Vandana,
1992. "The Seed and the Earth biotechnology and the Colonization of
Regeneration", Development Dialogue, 1-2.
(c) Menon, Usha, 1990. Impact of TRIPs Negotiations on Agriculture.
Brain Storming Workshop, National Working Group on Patent Laws, Part IV, pp
1-5, New Delhi.
**
(a) UNCTAD, 1993, "Implications of the Draft TRIPs Agreement for
Developing Countries as Competitors in an Integrated World
Market" New York.
(b) Primo Braga,
C.A. 1993. Global Dimensions of Intellectual Property Rights in Science and
Technology. National Academy Press, Washington . D.C.
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Box 3: Convention for the
Protection of New Varieties of Plants To be eligible for protection, varieties have to be:
Like all IPRs, the rights of plant breeders are granted for a
limited period of time, at the end of which the varieties protected by them
pass into public domain. Authorization form the holder of the right is not
required for the use of the protected variety in research, including its use
in breeding further new varieties. Source: UPOV, 1989. |
Although, patent
laws are inherently a national issue, it is time we join (albeit, selectively)
various international conventions/treaties, so that the cost of obtaining
patents and /international search reports can be reduced substantially. Also,
keeping in view the distinct variation^ in cost of patenting across nations,
there is a case for differential slabs of application fees for foreign
applicants seeking patents in our country. Judicious provisions for compulsory
licensing and non-voluntary license should be the feature of the proposed
legislation to curb possible patent abuses. The proposed PVP has adequate
safeguards to take care of farmers, researchers and environmental concerns. It
is high time that the proposed legislation is enacted so that this unnecessary irritant
in our trade relations, particularly with the DMEs is
removed.
Conclusion
The TRIPs
agreement aims at a certain minimum standard of IPR protection. Successful
implementation of the TRIPs agreement has a number of pre-requisites. The
important ones being legal, administrative and institutional reforms,
appropriate research investments, and first rate science and technology
capability. Provided the IPR protection is adequate and effective (world wide),
the TRIPs accord can promote innovations, transfer of technology, foreign
direct investment, use of genetic resources and environmental protection. The
returns from the economic value of protection system far outweigh its costs.
However, while legal protection may be a necessary condition for innovative
activities and technology transfer, it is by no means a sufficient condition,
given the importance of a host of other factors affecting research investment
and the transfer and diffusion of technology in DCs
and its ability to internalize benefits from the new rules of the game. The
nation's capacity to move from technology importer to technology exporter will
be the major determinant of its position in international hierarchy. Foresight
demands massive investments in science and technology, oriented towards quality
and frontier areas.
Creation of a
patent cell in the ICAR, is a step in the right direction. Having a clear-cut
intellectual property policy and promoting patent literacy (similar to CSIR)
among its scientists, must be the next logical step. A massive awareness
program needs to be undertaken to clear doubts regarding the process of patent
application and registration, patent information services, inspection of files,
determination of national need and the whole gamut of related issues.
To maximize
opportunities, DCs must foster and reward
entrepreneurship and evolve a regulatory environment conducive to technological
innovation. An effective IP regime will provide the synergy between the private
and public sector research institutions
( UNCTAD, 1994, The Outcome of the Uruguay Round : An Initial Assessment
.-Supporting Paper to the Trade and Development Report, New York.). This will
then provide a basis for future growth and development, particularly in case of
REFERENCES
1. World Bank, 1990, Strengthning
Protection of Intelectual Property in Developing Countries : A Survey of Literature, Discussion Paper,
2. GATT Secretariat, 1994, The
Result of the
3. UNCTAD, 1991, Trade and
Development Report, NewYork.
4. (a) Gill, K.S., 1991. “GATT
Issues-Agriculture Sector, Implications of Intellectual Property Rights for
(b) Shiva, Vandana, 1992. “The Seed and the Earth: Biotechnology and
the Colonization of Regeneration”, Development
Dialogue, 1-2 .
(c) Menon,
Usha, 1990 .Impact
of TRIPs Negotiations on Agriculture. Brains Storming Workshop, Group on
Patent Laws, Part IV, pp 1-5,
5. (a) UNCTAD, 1993, “Implications of the Draft Trips Agreement for Developing Countries as
Competitors in an Integrated World Market”
(b) Primo
6. Lesser. W..1991. Equitable
Patent Protection in the Developing World: Issues and Approaches, Eubios Ethics Institute,
7. News analysis,
Economic Times, February 12 and 15, 1995
8 World Trade
Organization, 1995, Environment and TRIPs; Committee
on Trade and Environment Paper,
9 FAO, 1996, Global Plan of Action for the Conservation
and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture,
Final Draft, International Conference on Plant Genetic Resources, Leipzig,
Germany.
10 UNCTAD,
1994, The Outcome of the
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September,
1996 |
A. Ravi Shankar |
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NCAP has been
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to upgrading agricultural/economics research through integration of economics
input in planning, designing, and evaluation of agricultural research programmes and strengthening the competence I in
agricultural policy analysis within the Council. NCAP Policy Briefs are intended to contribute
to the debates on important |