The International Union for the Protection of New Varieties of Plants (UPOV) is a treaty created outside the UN to provide a regulatory system for protecting plants. UPOV’s mission is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. The UPOV Convention provides the basis for members to encourage plant breeding by granting breeders of new plant varieties an intellectual property right: the breeder’s right. In the case of a variety protected by a breeder’s right, the authorization of the breeder is required to propagate the variety for commercial purposes. The breeder’s right is granted by the individual UPOV members.
Members joining UPOV have to enact a compatible national law. Although this convention protects breeders’ rights but it bars farmers from reusing saved seeds or exchanging them with other cultivators. As a result, just 76 members have signed and many of these did so because of pressure when signing bilateral trade agreements with the EU, US, Japan and the European Free Trade Association.
With the World Trade Organization’s all-encompassing IPR agreement on TradeRelated Aspects of Intellectual Property Rights (trips) coming into force, India had the choice of either joining UPOV or to formulate a sui generis system that granted protection to breeders’ rights while keeping farmers’ interests uppermost. The former option was rejected primarily because the current version of UPOV, which was adopted in 1991, denies the farmers the freedom to reuse farm-saved seeds and to exchange them with their neighbours. Instead, the Protection of Plant Varieties and Farmers Rights Act of 2001 (PPV&FRA) was enacted, which balances the interests of both while encouraging innovation in new varieties.
With PPVFRA, India introduced a chapter on Farmers’ Rights, which has three legs:
This, however, has not been to the liking of developed countries, and India has faced pressure constantly to join UPOV. The standoff with PepsiCo, which attempted to enforce its IPR on two of its registered potato varieties has opened India to further pressure, the latest from the EU, which is negotiating an ambitious Free Trade Agreement (FTA) with India. This has increased pressure on India to join UPOV. Indian authorities will have to walk a tightrope to balance rights of farmers on one hand and establish trust with respect to protection of intellectual property rights on the other.