Farmers’ rights under the Plant Varieties Protection Act 2019

Extending Intellectual Property (IP) protection to plant varieties – especially in the context of developing and agriculture-based economy like Bangladesh – is fraught with debates. The matter attracts various concerns that are seemingly contradictory – firstly, there is a need to ensure a proper balance between the proprietary rights of breeders and the rights of farmers who make their livelihood from agricultural productions; secondly, there are growing concerns about the sustainability of commercially produced varieties of plants – many researchers have argued that resorting to genetically modified organisms instead of relying on the traditional farming practices result in a number of adverse effects. For example, researchers have claimed that commercially produced varieties do not possess the natural resilience that was a significant feature in varieties which were produced through traditional practices such as cross-pollination etc. On the other end of the debate, some argue that commercially produced varieties are necessary to ensure sufficient yield to meet the growing need of food security. Moreover, there are also scholarships that discuss the impact some Genetically Modified (GM) crops have on the soil quality and resultantly, on the long-term future of agricultural production.

Due to the nature of the complexities surrounding the debates on IP protection of plant varieties, the topic is significant for Bangladesh. Although the economy is gradually moving towards industrialisation, there is still a significant portion of the population that relies on agriculture. As of 2019, the agricultural workers make up about 38% of the country's labour force. Needless to say, food security is also a significant concern for the country's population. Recent reports show that Bangladesh ranks 84th among 113 countries worldwide in the 9th Annual Global Food Security Index (GFSI), making it the last among South Asian nations. Furthermore, Bangladesh is also one of the most vulnerable countries to climate change, ranking 7th in the Global Climate Risk Index 2021, which makes sustainability a major concern for its law and policymaking.

Bangladesh is a state party to multiple treaties and conventions that require compliance with cross-cutting issues when it comes to extending IP protection to plant varieties. Being a dualist state, international treaties are not automatically incorporated into its legal system but are required to be incorporated within the domestic legal framework in order for them to be enforceable. However, progressive interpretations by the apex court have paved the way for reliance on international instruments when there is a vacuum in the law and for interpretive guidance. In Bangladesh, IP rights are protected under several laws. Of these, the ones relevant to the present discussion are the newly enacted Patent Act (which replaces the 1911 law), the Geographical Indications Act 2013, the Biodiversity Act 2017 (the Act does not explicitly deal with IP rights but contains provisions on regulation of IP rights relating to biological resources), the Trademark Act 2009 etc.

After over two decades of drafting, the Plant Varieties Protection Act 2019 was finally enacted in 2019. The Act relies largely on the model provided under the International Convention on the Protection of New Varieties of Plants 1961 (popularly referred to as the UPOV) and also the Indian Plant Varieties Protection and Farmers' Rights Act (PVP&FR Act).

The 2019 Act provides protection to three classes of plant varieties. Section 15 of the Act states that the variety invented by a breeder must be registered as essentially derived variety or farmer's variety and GMO protected breed.

Although the Act borrows from the UPOV the criteria of determining a plant variety – novelty, distinctiveness, uniformity, and stability (NDUS) – it also provides protection to farmers' varieties which, by definition, do not meet the four criteria. Farmers' variety or landrace under the Act is – 

(a) the variety invented by the farmer and which the farmer has been cultivating on his land, and

(b) a species which is related to a wild variety or whose origin is unknown, but the farmer has knowledge of that species.

This provision is not borrowed from the UPOV but from the Indian PVP&FR Act which provides protection to extant variety. Extant variety includes farmers' variety which is defined in more or less identical terms as the aforementioned definition under the 2019 Act.  While new varieties are required to fulfill all four criteria of the NDUS test, landraces are not meant to fulfill the novelty requirement. This provision is potentially problematic for several reasons. Considering the socioeconomic conditions of farmers' as well as the general lack of understanding for the need of registration, it is unlikely that farmers will avail the protection they are entitled to. As such, putting farmers and commercial breeders on an equal footing by requiring both to apply for registration is likely to do more harm than good to farmers. A wider scope of oversight with regard to landraces or farmers' varieties by the authority would perhaps been more prudent in order to bridge the inherent gap between farmers and breeders. Under section 23(2), farmers are allowed to reproduce and sell seeds except for commercial purposes. This is in line with the broader understanding of IP rights and the plant varieties protection regime, as well as the breeders' right exception under article 15 of the UPOV 1991. However, as the international corporations opt to expand their IP rights regime through a wider definition of "commercial marketing", this also leaves scope for potential restriction on traditional and informal exchange of seeds among farming communities. 

As it now stands, the implications of the 2019 Act for farmers' rights is far from clear. This may largely be due to the fact that there is little guidance on what a sui generis protection system would entail in terms of plant varieties protection. Until the existing tension with regard to the interpretation of the TRIPS provisions on patentability of plant varieties under article 27(3)(b) result in some definitive requirement for plant varieties protection, the area will remain indeterminate, and any evaluation will be limited by such confusion. At present, the creation of a well-equipped plant varieties protection authority, conducting requisite research to discover the specific requirements for the national geography and implementing the law accordingly are necessary.

The writer works with Law Desk, The Daily Star.