Influence of Trade Regimes and Agreements on AKST | 85

munities in countries of origin. In fact, there is little that a country of origin can do to enforce its benefit-sharing rights (recognized in CBD) if a person or corporation were to obtain a patent in another country based on the biological resource or related knowledge of the country of origin. If the patent laws, the administration of ap­provals, or the courts of a particular country operate in a context that is favorable to granting such patents, there is little that can be done by a country of origin to ensure that biopiracy does not take place, or that if it takes place that it can get a remedy.
•   Treatment of the environment. Protection of the envi­ronment is at the heart of the rationale and provisions of the CBD. The objectives of the Convention are "the conservation of biological diversity, the sustainability use of its components and the fair and equitable shar­ing of the benefits arising out of the utilization of ge­netic resources" (Article 1). Countries are obliged to develop strategies and plans to conserve and sustain-ably use of biodiversity in sectoral and cross-sectoral plans and policies (Article 6); to carry out in situ and ex situ conservation (Article 8, 9); to minimize adverse impact on biodiversity whilst also carrying out remedial action in degraded areas (Article 10); and to conduct environmental impact assessment on and minimize ad­verse effect of projects (Article 14). In particular, Article 19 asks parties to consider the need for an international biosafety protocol, which has been established—The 2000 Cartagena Protocol on Biosafety (CBD, 2000). This Protocol is meant to deal with the safety aspects of biotechnology and international transfer of genetically-modified organisms.

     TRIPS does not have environmental protection as part of its objectives. It does, however, have provisions that en­able members to exclude patents on environmental grounds as stated in Article 27.2 (see above). This provision provides some scope for members to take the environment into ac­count in their IPR policies. Article 27.3(b) of TRIPS also allows for exclusion from patentability of plants and ani­mals other than microorganisms and essentially biological processes other than microbiological processes. Whilst the article at first reading enables the exclusion of patentability for plants and animals, in fact it has opened the door to worldwide patenting of genes and microorganisms and pat­enting of genetically-modified organisms, including modi­fied plants and animals. Many environmental groups and scientists are concerned that patents granted on life forms would hinder the process of scientific research by researchers that do not own the patents; and also that the incentive of providing monopoly rights to companies to produce GMOs would contribute to the proliferation of genetic-engineering application that have adverse effects on biodiversity.

3.3.2     Farmers' access to AKST vs. breeders' rights
The importance of the conservation and sustainable utiliza­tion of plant genetic resources (PGRs) for food and agricul­ture is broadly recognized today. One of the areas for global action relates to farm conservation. Farmers not only use seeds and related AKST; they are key players in the process of conservation and improvement of plant varieties. Their

 

activities ensure crop evolution whereby new varieties arise through genetic recombination, mutation and hybridization within and between cultivated and wild plant populations (Brush, 1994).
     With the importance of farmer protection and public interest protection from the patent regime in agriculture, many developing countries like Thailand, Zambia, Bangla­desh and Costa Rica provide farmer rights in their legisla­tions. The Indian Protection of Plant Varieties and Farmer Rights Act, 2003 also provides for farmer rights to use, re­use, exchange and even sell (unbranded) seed, has researcher exemption, creates a national gene fund and provides for compulsory licensing in case of public interest. Farmers' rights are valuable as they promote equity, conservation and preservation which are so crucial for sustainable agriculture. But so far as protection of farmer varieties is concerned, there are problems of identifying one from another, dura­tion of protection and passing on the benefits to community (Alam, 2004).
     A recent comparative analysis of the protection to plant varieties and farmer rights in the patent laws of the various Asian countries shows that only India and Malaysia recog­nize the protection of farmers' interests as one of the objec­tives of the law and almost all the countries have based their definition of plant variety and essential derived variety on the UPOV with only Bangladesh, India, Malaysia and Thai­land excluding microorganisms expressly and only China and South Korea not defining essentially derived varieties (EDVs).
     On definition of breeders again, except India and Thai­land, other countries specifically recognize "discovery" as a ground which could hurt farmer interest as any breeder could discover a variety which rightfully might have been invented by farmers. Only India and Malaysia recognize "evolution" and "genetic manipulation" as one of the criteria for breed­ers respectively. Surprisingly, most of the countries, except India, do not define farmers as they are not given any rights. This is due to the fact that UPOV has been followed which only provides breeder rights. Indian definition of farmer is broad enough. Except India, Malaysia and Thailand which accommodate farm varieties to some extent, mostly UPOV laws have been followed for criteria for granting protection to plant variety which is NDUS—new, distinct, uniform and stable.
     TRIPS requires protection of plant varieties as against new plant varieties under UPOV. Breeders have exclusive rights over agricultural and horticultural varieties and even export and import is in the hands of breeders. Most coun­tries provide Plant Breeder Rights (PBRs) for 20-25 years for trees and 15-20 years for other plants except India which has initially shorted protection but extendable and Malaysia which is biased against farmers' varieties. In all cases, the PBR can be forfeited if variety does not fulfill the claims made or if it is detrimental to the environment or the public order with Bangladesh even going further by making provi­sion for invoking food security, monopolies or rights of the communities.
     Most of the countries also provide exemption to the rights granted to plant breeders but not as wide as in case of India. The exhaustion of breeder rights is provided by Pakistan, Sri Lanka, South Korea and Philippines (UPOV-