Farmers’ rights in plant variety protection law of Bangladesh

The legal framework, particularly premised on the intellectual property standards for the protection of new plant varieties triggers formidable challenges for farmers' rights, traditional farming, farmers' traditional knowledge. Bangladesh has adopted legal regime on plant variety protection though the Plant Variety Protection (PVP) Act, 2019. As the preambular paragraph delineates, the PVP Act is enacted for two reasons, (a) to comply with the treaty obligations of Bangladesh, specifically, under the TRIPS Agreement, 1995 and the Convention on Biological Diversity (CBD), 1992; and (b) to protect the rights of breeders and farmers for agricultural developments and foods security. The PVP Act of Bangladesh has envisaged UPOV model of plant variety protection through a central registration system in which the breeders shall enjoy certain intellec-tual property type exclusive rights for limited period of time. 

The Act has designed a plant variety protection authority consisting mostly of bureaucratic personnel (section 6). The functions of this authority include, inter alia, determining and publishing plant race and genus, registration, issue and cancellation of certification of plant varieties, adopting the procedures for inspection of application on plant varieties protection, and implementation of the rights of the breeders and farmers (section 6). The procedures for registration of plant varieties are provided under section 15 whereas the qualifications of the applicant for registration are outlined in section 16 of the Act. There are four characteristics for protection of plant varieties under section 19 of the Act, namely, (a) novelty, (b) distinctiveness, (c) uniformity and (d) stability which originally reflected in UPOV Model. The durations for the protection of different plant varieties under this law are 16 years for fruits trees, other trees and vines of perennial habits and 14 years for all other varieties (section 22).  

The PVP Act of Bangladesh contains a number of legal provisions to safeguard the rights of local farmers and their traditional knowledge. Notably, section 23 of the Act requires the plant varieties protection authority to protect and promote the following farmers' rights, including: (a) registration and preservation the rights arising out of the newly developed varieties by farmers, (b) receiving benefits arising out of farmers' protected plant genetic resources if such resources are used by the breeders to develop new varieties, (c) participation in decision making process of conservation and sustainable use of plant genetic resources, and (d) seeking the cancellation of registration for farmers' traditionally used plant varieties if such varieties are registered by government or private breeders in their own names, etc. 

Under the PVP Act, farmers shall have rights, except for commercial purpose, to produce, reproduce, preserve, use, reuse, exchange the protected varieties. Moreover, the PVP Act of Bangla-desh has also provided grounds for rejecting a plant variety application, inter alia, if the breeders' application is based on the farmers' variety without due consents taken from concerned farmers (section 17). Furthermore, the aggrieved farmers are entitled to receive equitable compensation for any loss suffered due to the intentional negligence of the breeders (section 31).  

Apparently, there are a number of good provisions in the PVP Act for the protection of tradition-al farming, traditionally grown seeds, landraces, varieties, prohibition of terminator technology and finally asserting some positive rights to farmers. Yet, concern remains that how far such legal provisions would strike a balance between the professional plant breeders' rights and poorly equipped farmers' rights in Bangladesh. What would be the implications of the PVP Act on small holder farmers or small-scale farming of Bangladesh? Will the public funded institutes such as agricultural universities and government owned seeds authorities be able to harness their new va-rieties and maintain the sovereignty over seed sector of Bangladesh? So far, in the absence of intellectual property rights-controlled monopoly, Bangladesh has remarkably been able to achieve the food security. Significantly, will protected varieties, such as GMOs, hinder local varieties, food security and adversely impact on bio-diversity? For example, Bangladesh approved field cultivation of transgenic plant called 'Bt brinjal' in 2013 and in the final stage of approving of 'golden rice', a transgenic or genetically engineered rice variety. Environmentalists and rights ac-tivists have been vehemently opposing cultivation of 'Bt brinjal' and 'golden rice' considering their negative ramifications on local varieties and bio-diversity. 

Finally, unlike the Protection of Plant Varieties and Farmers' Rights Act, 2001of India, the PVP Act of Bangladesh does not expressly provide some of the pressing issues of farmers' rights and local interests, including, exemption for innocent infringers of breeding rights, exemption from registration fees and administrative costs for the farmers, additional requirement for registration of GMO variety, etc. Moreover, it is unclear whether farmers can be breeders under the PVP Act. Bangladeshi farmers might face the similar challenges which Indian farmers have already encoun-tered in achieving tangible benefits through registration of their varieties. Furthermore, the im-plementation of the PVP Act through the concerted efforts from relevant institutions and author-ities would remain a critical challenge. Thus, the adoption of plant varieties protection regime with farmers' rights and for food security can generally be appreciated, however, it remains to be seen how Bangladesh is going to subdue the associated challenges.

The writer is a WIPO Scholar and Senior Lecturer in Law, East West University, Bangla-desh.