1. Munich Intellectual Property Law Center (MIPLC)
Law & Policy for the Protection of Farmers’ Seed
Varieties in India: Beyond Bt Cotton & Seed
Replacement Rates
Mrinalini Kochupillai
Max Planck Institute for Innovation & Competition
Munich Intellectual Property Law Center
Natural Farming Summit 1.0 – 2017
Innovative Approaches for World Nutrition & Food Security
Bangalore, 9-10 May, 2017
2. Presentation Structure
• Problems in Indian Agriculture
• The Incentive Structures (law & policy)
• HMT Case
• Bt Cotton Controversy
• Conclusion & Recommendations
4. Source: Ramesh Chand et al., ‘Farm Size and Productivity: Understanding the Strengths
of Smallholders and Improving their Livelihoods’ (2011) 46 (26 & 27) Economic and
Political Weekly 5, 6.
Note: 1 hectare = 2.4 acres = 10,000 m2
Country Average Landholding
Size (ha)
India 1.4
Netherlands 22
France 45
USA 178.4
Canada 273.4
The Indian Reality
5. • Increased rural urban migration
– Disinterest in farming as a profession among young members of
farming families
– Reduction of farmers to the status of mere ‘laborers’
– No pride associated with farming as a profession
• Farmer suicides
– Increasing debt due to purchase of cost intensive inputs (fertilizers,
pesticides, water, seeds)
– Absence of crop insurance to any significant extent
– Frequent failure of crops OR low market rates due to glut (over
production)
Major Problems faced by India Agriculture
6. Presentation Structure
• Problems in Indian Agriculture
• The Incentive Structures (law & policy)
• HMT Case
• Bt Cotton Controversy
• Conclusion & Recommendations
7. • Save seeds (decrease costs) or buy
improved seeds (increase productivity)?
•
Problems in Indian Agriculture
8. The Indian Plant Variety Protection Act, 2001 - Dual Aim
1. Promoting formal innovations, and
2. Promoting informal innovations and in situ agrobiodiversity conservation
Incentive Structures
9. • Intellectual Property Protection
– Plant Breeders’ Rights
– Patents
– Sui Generis Systems
• Seed Replacement Rate & Associated
Government Policies
– Hybrids (100%)
– Cross-Pollinating Crops (66%)
– Self-Pollinating Crops (33%)
Incentive Structures
13. Presentation Structure
• Problems in Indian Agriculture
• The Incentive Structures (law & policy)
• HMT Case
• Bt Cotton Controversy
• Conclusion & Recommendations
14. Who is benefitting?
• Monsanto has a patent on the Bt (II) technology, which is
licensed under the trademark Bollguard II to about 40 Indian
seed companies
• Royalty earned by Monsanto in 2013 (alone) from royalties
paid for this technology – 6.85 billion rupees (Approx US $
110 millions)
Bollworm Larva
15. Monsanto’s Bt Technology
Because of the high license fee charged by
Monsanto, Indian seed companies have frequently
pressured Monsanto to reduce the license fee,
including by resorting to litigation.
Last year, as a result of another such litigation,
the State and Central governments tried to
intervene by, inter alia, trying to put in force price
control mechanisms and/or by suggested the
revocation of patents.
20. Thank you for your attention!
Email: mrinalini.kochupillai@miplc.de
Agriculture is the backbone of human existence. For any civilization to prosper, agriculture
has to be healthy and sustainable. We need to get our focus back on agriculture which
is the primary industry. Our earth has plenty for everyone. We only have to manage its
resources well.
- Sri Sri Ravi Shankar
Editor's Notes
While this picture is not the picture of agriculture in several countries of the world, it is still a picture of agriculture in India. I need not remind the expert audience here that 50% of the Indian population is still engaged in agriculture or related activities. Yet, this 50% accounts for a shrinking % of India‘s GDP. Less than 14% of the Indian GDP is now accounted for by agriculture. Does this mean that agriculture is not an important economic activity anymore? My presentation today provides some ideas into how the law in India – especially the law relating to agricultural seeds can help enhance this number and bring economic and social benefits to out farmers. It also identifies impediments that stand in the way of this being accomplished and provides some statistics that will hopefully provide food for thought.
The most important statistic to bear in mind when we are designing a law or a policy to promote agricultural innovations in India is the average land holding size. Almost 80% of the farm land holdings in India are small or marginal – this means that 80% of the landholdings are of an average size of 1.4 hectares. At first glance, therefore, it may appear that farmers in India are economically predisposed to seed saving rather than adopting new seeds. In order to determine whether this is indeed true, a survey based study was designed among Indian farmers. The key statistic that this survey collected was the seed replacement frequency as stated by each farmer. The 5 year long study, which interviewed over 200 farmers, came to the conclusion that even small and marginal farm holders, when given a choice, go for formally improved seeds rather than for saving seeds.
So what are some of the obstacles in the path of making the 50% of the Indian population engaged in agriculture, contribute more to the GDP? During the course of a 5 year long study undertaken with the support of the Max Planck Institute, where more than 200 farmers were interviewed in several districts and villages of Madhya Pradesh and Chattisgarh, one major problem that was identified by the farmers was that of declining interest among younger generation to remain in agriculture as a profession. They said that if a person wants to marry of their daughter, they will prefer to marry her to a clark earning Rs. 5000 a month, than to a farmer earning double that amount. There is here an indication of the reduced prestige linked to farming.
In addition, taking things to an extreme is the farmer suicides. While these appear to be unlinked events, I would like to argue that they are actually linked, or at least can be resolved with the same brush stroke. And that brush stroke is encouraging farmers themselves to improve seeds.
The question then is: In the current situation, do farmers have a greater economic incentive to save seeds or to buy new seeds and increase productivity?
It is noteworthy here that choosing to save seeds, especially over several generations, leads to in situ conservation of agrobiodiversity and is the first and necessary step for informal (farmer-level) innovations in PVs. On the other hand, when farmers choose to adopt new/improved breeder seeds, they are increasing the demand for such seeds, and thereby incentivizing formal innovations e.g. by seed companies. Therefore, the stated dilemma which might originate at the farmers’ level, also translates into a legislature’s dilemma of finding a balance between incentivizing agrobiodiversity conservation or informal innovations on the one hand and formal plant variety innovations by breeders on the other.
REDUCE TEXT TO MAX 30 SECONDS - REFER TO THE AneXXED SHEET - These 2 factors are the Seed Replacement Rate as recommended by modern plant breeders and implemented via govt policies, and laws adopting either PBR systems similar to UPOV, or patents, or sui generis regimes to protect private investment in seed related R&D as per TRIPs Mandates. For more information regarding the recommended seed replacement rate please refer to the Index of key terms and the write up already circulated to you.
Here, you will see that there are an abundance of innovative farmers in India. But the law does not make the private sector or the government sector that uses their innovations, pay them any type of compensation or royalty. The times of ‚free‘ access to germplasm are over! The world is charging for germplasm and farmer saved seeds contain an abundance of germplasm that is up to date vis.a.vis current agroclimatic conditions – rich with genetic variability and climate and soil specific traits that are naturally resistant to biotic and abiotic stresses. Why are we not charging for this germplasm?
Dadaji Ramji Khobragade got a PVP certificate on his HMT variety, and his rice seed variety was also used as the starting point for seed improvements by PRD Krishi Vidya Peeth. But because of specific lacunae in the Indian PPV&FR Act, Dadaji was not given (and was not required to be given) any royalty by the University of any private entity that used his variety as starting point for further improvements. While some good soul might actually give him royalty, the law being opposite, does not serve any purpose for this farmer. His innovativeness does not receive the required recognition or economic benefit and his PVP certificate is a mere paper tiger. So if the farmer is not benefitting from the Act, who is?
This brings me to the recent Bt Cotton controversy -
The patented Bt (II) technology is licensed under the trademark Bollguard-II®.
Monsanto has a patent in India (No. 232681) since March 20, 2009 and has licensed this patent to its joint-venture in India - Mahyco Monsanto Biotech (India) Ltd. Mahyco in turn has entered into sub-licences with approximately 40 Indian seed companies.
These seed companies evolve their own seed varieties, which can be protected under the Protection of Plant Varieties & Farmers Rights Act, 2001 and these seeds are then introgressed with Monsanto’s patented gene technology.
Monsanto is paid a royalty for the patented technology by seed companies
In 2013, Monsanto earned an annual revenue of 6.85 billion through license fees (Approx. US $110 million).
But revocation of patents will not solve the key problem – and that is the problem of re-establishing the pride linked with being a farmer. A farmer must not be considered a mere laborer that sows and harvests crops. But he must be considered and encouraged to innovate. Further more, the farmers that do innovate must not be used to make the government or private sector (alone) rich, but to make the farmer and his/her village rich. This will lead to overall increase in the productivity of the 50% of the farming population engaged in agriculture and lead to the creation of what is known as an Innovation society!
The presentation today will be divided into the following broad sections. I will start with a brief background in which the current research is situated. I will thereafter introduce the research and explain to you ist relevance - at least from my own perspective as enriched by the research I’ve been doing for the past 3 years. Thereafter, I will present to you my research hypothesis. I will pre-warn you that we will see equations that remind us of our dreaded mathematics classes. Now I was delighted at the thought that I was getting rid of all math and statistics when I entered law school. However, as life likes to play jokes on us and brings us face to face with our fears over and over again till we overcome them, I could not avoid statistics, equations and statistical analysis during this multi-disciplinary research. To those of you who are experts, I beg your pardon for any gross and embarassing errors, and I hope to receive constructive feed back from you. And for those who, like me, dread everything that even appears like math, I would like to say, dont worry, I will explain it all in simple english. After the research hypothesis, I will explain to you the broad research method I adopted for the empirical research, including for collecting the data. Thereafter, I will summarize my research findings. And finally, during the course of explaining my ‘Conclusions and Recommendations’, I will talk about the Role of Governmental Institutions & NGOs
The question then is: In the current situation, do farmers have a greater economic incentive to save seeds or to buy new seeds and increase productivity?
It is noteworthy here that choosing to save seeds, especially over several generations, leads to in situ conservation of agrobiodiversity and is the first and necessary step for informal (farmer-level) innovations in PVs. On the other hand, when farmers choose to adopt new/improved breeder seeds, they are increasing the demand for such seeds, and thereby incentivizing formal innovations e.g. by seed companies. Therefore, the stated dilemma which might originate at the farmers’ level, also translates into a legislature’s dilemma of finding a balance between incentivizing agrobiodiversity conservation or informal innovations on the one hand and formal plant variety innovations by breeders on the other.
We need to make sure that the laws and policies are such that re-balance incentives for seed saving and seed improvement by not just the formal sector, but also the informal sector (farmers) – the 50% of the Indian population engaged in agriculture are all potential innovators - IF they are encouraged to save and improve seeds rather than to just act as laborers that mechanically cultivate crops by replacing their seeds each season from the marker and using inputs provided by others at heavy costs to themselves and the environment.
It is in this background that I am happy to let you know that we have Dr. Natalie Kopytko from the University of Leeds, who is working together with Prof. Radick of Leeds and us at Max Planck to understand the trends in innovation among farmers engaged with organic farming using traditional know how provided by Art of Living and also to determine what exactly is the reason why there was (historicall speaking) a shift away from farmer level seed exchange to the current market sales dominated seed replacement rates.
